By David Reid, Director.
As the governments in the nations of the UK continue to work through their roadmaps for enabling businesses to start re-opening, many of the estimated 8.7 million employees currently on furlough are now hearing from their employers about tentative arrangements for returning to the workplace.
For many employees, the chance to return to work will be welcome. However, for others, and for a wide variety of reasons, there may be a reluctance to go back to their workplace at the present time. Many such reasons, like a lack of available childcare while schools remain closed, are entirely reasonable and understandable. At the other end of the scale, there may be a minority of employees who have become quite comfortable with being on furlough and are in no hurry to return to normal working life.
In the middle, there will be a substantial group of employees who will need reassurance as to their employer’s ability to arrange their work in a way that minimises the risk of becoming infected with coronavirus. Where the employee, or someone in their household, has a chronic medical condition which places them at higher risk of complications, should they contract COVID-19, it is easy to understand why a high level of reassurance may be required before the employee will be prepared to return, and feel confident in returning, to their workplace.
The government’s central response to this issue has been to develop guidance on making your workplace “COVID-Secure”. We explained this guidance in our JEL Alert of 13 May.
Of course, following the steps set out in this guidance can only ever minimise the risk of contracting COVID-19, not eliminate it. At the same time, it has to be recognised that we all assume some risk of coming to some harm, whether from COVID or otherwise, every time we leave our homes. So, what is a reasonable position for an employee to adopt as we move forward from the current stage of this pandemic?
Clearly, employees who are shielding, or who live with someone who is shielding, because they are in the highest risk category of individuals with extremely serious medical conditions, cannot sensibly be advised to return to work at present. The furlough scheme, in most cases, remains the most appropriate way of enabling these employees to have an income until the risk for this group is deemed by public health authorities to have fallen to an acceptable level. For some businesses, the requirement to start contributing towards furlough costs from 1 August might present a problem if no business income is coming in whatsoever, but there is time yet for the public health advice on those shielding to change before then.
For employees with chronic medical conditions who do not fit into the shielded category, and who cannot work from home, particular care will have to be taken by employers to assess the risk to that individual of returning to their normal place of work. A “one size fits all” approach as to whether it is safe to return to the workplace cannot realistically or safely be taken; the characteristics of the employee concerned have to be taken into account. Risk assessments should be discussed in detail with individual employees where necessary, and adapted if necessary to take account of information provided by the employee.
In many cases, however, the barrier to returning to work might not be the health, or a characteristic, of the employee. Rather, it might be some feature of the workplace which is considered by an employee (healthy or otherwise) to be unsafe. Therefore, it is important to consider what legal rights an employee has where he or she considers some aspect of their workplace to be fundamentally unsafe.
The first thing to understand is that, pandemic or not, every employer has the legal obligation to provide all of their employees with a safe system of work. There are various ways under both contract and statute in which an employee might be entitled to continue to receive their normal pay from their employer whilst not working, if the employer is unable to provide a safe system of work.
Naturally, making your workplace COVID-Secure in line with government guidance is the key step to providing a safe system of work during the pandemic. However, it may be that employees identify practical issues with their working arrangements, either before or after their return to work, which they might allege amounts to unsafe working arrangements. Where an employee makes such allegations, they enjoy considerable protection under the Employment Rights Act.
An employee is protected against detriment or dismissal (about which we say more below) if the reason for the detriment or dismissal is that:
- They brought to their employer’s attention, by reasonable means, circumstances connected with their work which they reasonably believed were harmful or potentially harmful to health and safety; or
- In circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably be expected to avert, they left (or proposed to leave) or refused to return to their place of work (or the dangerous part of their place of work).
Of course, the argument that returning to work with the potential of contracting Covid-19 amounts to “serious and imminent danger”, as outlined in the legislation, has not yet been tested, but it is surely inevitable that employment tribunal claims will be raised in due course to test this point. In the meantime, it is important to note that the dismissal of an employee for these reasons is automatically unfair, requires no service qualification and it is not open to an employer to defend such a tribunal claim by saying they acted reasonably in all the circumstances. Nor does it matter whether the employee was mistaken in their assessment of the danger, as long as their belief was reasonable at the time. Therefore, where an employee raises a COVID-related health and safety concern in connection with their system of working or place of work, employers would be well-advised to treat it extremely seriously, even if they have reason to suspect that the employee might have some ulterior agenda in raising the issue.
Detriment is also worthy of careful consideration. A common scenario is likely to be that an employee refuses to work or return to work after raising a COVID-related safety concern. If the employer takes the view that the employee should not be furloughed and that the workplace is in fact safe, the natural conclusion would normally be that the employee is not entitled to be paid as they are refusing to provide their labour. However, before this drastic measure is imposed, employers should ensure they have done all they can to alleviate the employee’s concerns, including working through risk assessments with the employee and considering alternative working options, such as working in a different place (perhaps including the employee’s home, where practicable).
An employee should not succeed in a case for automatically unfair dismissal or detriment on health and safety grounds where the concerns raised are fanciful, or where the employer has demonstrably done everything possible to show the employee that the concerns are misconceived. Unfortunately, though, many cases will not be so clear-cut. Employers will therefore want to take specialist employment law advice before consequences are imposed on an employee for refusing to work in these circumstances. Disciplinary action or dismissal should really be viewed as a last resort in all but the most blatant cases of malingering.
We are well-placed to assist you in dealing with the difficult cases that will arise in this area and we strongly recommend that advice is taken as soon as the issue becomes apparent.
If you would like to discuss this analysis in more detail, or need support or assistance on any other employment law matters, please don’t hesitate to contact a member of the team on 0141 331 5150.