Health and safety claims

Employees have a right to protect themselves in circumstances of danger that they reasonably consider to be serious and imminent. Dismissing an employee in these circumstances will be automatically unfair. There is no qualifying period and no cap on the amount of compensation that can be awarded. Employees who are subjected to a detriment on these grounds – such as disciplinary action – may also bring a claim.

Could an employee who refuses to return to work because of the risk of coronavirus claim the protection of these provisions? While every case will depend on the individual circumstances, there are substantial obstacles than an employee would have to overcome. In the first place there must be actual danger. Coronavirus is of course a serious danger to public health, but does that really mean that each individual workplace is in ‘circumstances of danger’ even if there is no evidence that any of the employees are likely to be infected? Even if the Tribunal does accept that coming to work would have involved some danger, that is not enough to trigger these health and safety rights. The employee must also reasonably believe that any danger was ‘serious and imminent’. Importantly it is the employee’s belief that matters – provided it is reasonable – rather than any assessment of the danger carried out by the employer. A Tribunal might hold that an employee’s belief that the danger was serious and imminent was a reasonable one even if it concluded that it was misplaced.

Clearly a crucial question here is whether the employer has taken all reasonable steps to prevent the transmission of coronavirus in the workplace. If it has not, then that would give the Tribunal strong reasons for upholding the employee’s right to refuse to come back to work. But if it is clear that the employer has done all that could be expected – and the employee has no additional vulnerability that would exacerbate any risk to their health – then it is unlikely that that the Tribunal would find that there were circumstances of danger that the employee reasonably believed to be serious and imminent. These provisions were developed to deal with emergency situations that arise in the workplace. They do not give every employee a right to refuse to come to work because they are worried about a background risk of infection that would exist whenever they left home.

This is likely to be a hotly contested area in the aftermath of the coronavirus crisis and so a cautious approach is advisable. Employers should listen carefully to any concerns that employees raise about the prospect of returning to work and only take disciplinary action when they are satisfied that there are no proper grounds for those concerns.