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Returning to Work Safely?

Returning to Work Safely?

As lockdown begins to ease and businesses are looking to return staff to work, many employees may be anxious about returning to work. It is important that employers consult with their staff in relation to the measures they are putting in place to ensure workplaces as COVID secure.

Despite the measures employers put in place, a small minority of staff may consider that the continuing presence of COVID-19 presents a serious danger to them and/or their colleagues in returning to work.  Employers therefore need to manage carefully returning employees to the workplace.

Have you heard of Sections 44 & 100 Employment Rights Act 1996? 

The answer to this question is probably not unless you are an Employment Lawyer! Claims under section 44 and 100 Employment Rights Act 1996 in the past have been rare, however if employees do not feel safe at work because of the threat of COVID-19, such claims may become more prevalent in the future.

As all employers will be aware, there is a general duty for them to take care of their employees’ health and safety whilst at work.  Likewise employees have a duty to take care of their own health and safety.

In terms of returning to work safely, current Government guidance states that COVID-19 is likely to present a serious danger to employees in every workplace and employers need to carry out risk assessments prior to returning employees to work to minimize the risk as much as possible. Employers must also set up safe systems of work following the risk assessment.  Public Health England and other guidance is likely to be relevant when assessing the risk and good communication with employees, and/or their elected representatives (including trade unions) is likely to be key.

However, despite employers’ best efforts, some employees are likely to be reluctant or refuse to return to work, or may leave work, if they do not consider their working environment is safe for them to operate in.  Employees in these circumstances have a right not to be subjected to a detriment (S44) or dismissed (S100), if in circumstances of danger which they reasonably believe to be serious and imminent they refuse to attend or leave work.

For an employee to take action under S44 and/or S100 there must have been circumstances of danger which the employee reasonably believed to be serious and imminent. The Secretary of State formally declared that coronavirus posed a serious and imminent threat to public health in February 2020. Although this is not determinative of the test under the Employment Rights Act, as a matter of common sense it is easy to see how an employee could reasonably believe there was a serious and imminent threat from coronavirus in many workplace situations. The risk of contracting coronavirus is evidentially capable of being a danger, leaving the question for tribunals as to whether an employee had a reasonable belief that the danger posed by coronavirus was serious and imminent.

Employers are unlikely to be able to successfully defend claims on the basis that the risk of coronavirus was not serious, with the staggering number of deaths and infections the disease has caused. One view is that the risk of coronavirus will always be imminent whilst the pandemic continues whenever an employee leaves their home. From this perspective, one can assume that both S44 and S100 will become a real issue for employers as employees may find it easy to assert that they reasonably perceive a serious and imminent danger in the workplace as work resumes in the coming weeks.

There has been very little case law in relation to these particular sections, it is important that employers listen to employees concerns and do not make ‘knee jerk’ reactions to any health and safety concerns raised by employees, e.g. by extending furlough leave or selecting an employee for redundancy because they have raised a concern.

Whistleblowing

There is an obvious link to employees also making protected disclosures in these circumstances. Employees may also make claims for whistleblowing if they point out that the health or safety of any individual has been, is being or is likely to be endangered and employers fail to deal with them and either subject the employee to a detriment or dismiss them for having raised such concerns.

In relation to S44, S100 and whistleblowing claims, there is no requirement for employees to raise any concerns in writing and therefore,  employers need to make sure that managers are aware of all of these provisions and do not subject employees to detriments or dismiss employees (more likely constructive unfair dismissal claims) by reacting badly to e.g. an employee’s refusal to return to work.

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