Further to this week's change in official messaging surrounding the rules of lock down, this morning the Health Secretary, Matt Hancock, failed to provide any concrete assurances for those employees who don't feel safe to return to the workplace. As such, we thought it would be useful to outline in more detail the rights and remedies available to workers during the current pandemic.
Health and Safety Dismissals (& Resignations)
Social media has (correctly) focused on the protection provided by two specific sections of the Employment Rights Act 1996, which protect individuals when they have taken specific health and safety related action; either leaving the workplace, or taking “appropriate steps” to protect themselves or others (such as refusing to re-enter upon request). Sections 44 and 100 make it unlawful for employers to dismiss employees if they have taken these steps, protecting those who reasonably consider that there is “serious and imminent” danger. A dismissal in this context would also include resignation (referred to as a constructive dismissal), where an employee chooses to resign rather then re-enter what they would consider to be an unsafe working environment.
The Act goes further still, protecting employees from other obstructive measures (known as "detriments") such as withholding pay or even abusive language.
Pre-Coronavirus this section of the law was very rarely used as it was unusual for places of work to pose the dangers that they do within the current pandemic. But what does this mean for us now, when employees are already feeling the pressure to go back into work?
We have recently brought a number of cases under this area of law using the following reasoning:
The law states that for an employee to be protected, there must have been “circumstances of danger which the employee reasonably believed to be serious and imminent.” As a matter of common sense, it should be reasonably obvious that commuting and sharing a workspace during the current pandemic falls within this definition, but in case of any argument to the contrary (which may be based on the unclear government briefings), we would turn to Regulation 3(1) of the Health Protection (Coronavirus) Regulations 2020, which states:
“These Regulations apply where the Secretary of State declares, by notice published on www.gov.uk, that the incidence or transmission of Coronavirus constitutes a serious and imminent threat to public health, and that the incidence or transmission of Coronavirus is at such a point that the measures outlined in these Regulations may reasonably be considered as an effective means of preventing the further, significant transmission of Coronavirus (“serious and imminent threat declaration”)."
The Secretary of State made this "Serious and Imminent Threat declaration" on 10 February 2020, formally declaring that Coronavirus posed a serious and imminent threat to public health. Therefore, in our view, that would mean that from 10 February 2020 at least (and most likely earlier), most employees would have reasonably believed there to be circumstances of danger which are serious and imminent.
So, aside from detriments (ie. punitive measures), if an employee resigns or is dismissed for refusing to attend work, because they felt unsafe returning due to the current pandemic, there may be a claim for an unfair dismissal on health and safety grounds. Importantly this is also a day one right (meaning an employee does not need 2 year's service), and there is no cap on the amount an employment tribunal can award.
In addition to the above, the position as to an injury to feelings award is currently unclear with two conflicting decisions, one (Virgo Fidelis Senior School v- Mr Kevin Boyle) awarding injury to feelings for a detriment, with another (Gomes -v- Higher Level Care Ltd) casting doubt on whether that decision can stand. Our firm is currently testing, within the regional employment tribunals, as to whether injury to feelings can be claimed for Covid-19 dismissals in addition to loss of earnings, and we will provide an update as soon as some clarity is reached.
Ordinarily, a refusal to attend the workplace could result in a lawful dismissal. However, during the current pandemic, the context of this refusal should be be closely considered by an employer before any disciplinary action is taken. In addition to the law we've described above, which protects employees from being forced into work if they feel unsafe to do so, there are also additional contextual matters to consider such as; does the employee fall within a vulnerable group? Are they pregnant? Do they live with people who fall within these groups? Are there whistleblowing elements? In these instances people may benefit from more specific legal guidance relative to their individual situation so if you think you may be affected please call us.