The law

There are a number of protections in place for employees and workers and it is important that employers are aware of these protections when considering what action to take in relation to employees or workers who refuse to return to work because they do not feel safe.

The Employment Rights Act 1996 provides protection from dismissal (Section 100) where “in circumstances of danger which an employee reasonably believed to be serious and imminent and which he could not reasonably be expected to avert he (while the danger persisted) refused to return to his place of work”.

Under Section 44 of the Employment Rights Act, an employee has the right not to be subjected to a detriment by his employer on the same grounds (this will include for example a disciplinary warning).

These protections only apply to employees but workers are also protected by the whistleblowing legislation.

It is likely that a disclosure of information to the employer which tends to show that the health and safety of any individual is being or is likely to be endangered will constitute a protected disclosure. 

Workers are protected from being subjected to a detriment by his employer on the grounds that the worker has made a protected disclosure (Section 47B) and are also protected from dismissal if the reason for dismissal is that the employee had made a protected disclosure (Section 103A).

Taking action against reluctant employees

We currently do not have guidance as to what constitutes a reasonable concern relating to health and safety which could justify an employee or worker refusing to come into work and in what circumstances an employer can discipline an employee for refusal to attend work where they consider that they have a valid health and safety concern relating to Covid-19.

Many employers will err on the side of caution and refrain from taking disciplinary action but agree with employees that they can work from home if possible or take a period of unpaid leave instead.

The reasons for the refusal to attend work would certainly need to be closely considered on a case by case basis during an investigation stage before disciplinary action is taken. 

Employers would need to be satisfied that they had followed all aspects of any government guidance due to be published on 10 May 2020 and conducted a health and safety risk assessment. We consider that full and detailed risk assessments will be key in these situations. There have been calls by unions for employers to be required to publish their risk assessments to provide assurance to returning employees. We think that this would be a sensible step for employers to take anyway regardless of whether they are legally required to or not.

In the section below, our regulatory partner James Lowe considers how SMEs can prepare themselves for the relaxation of lockdown measures. 

Managing the risks to Health and Safety in a post-Covid 19 World

At present, there is a considerable amount of media attention being given to the Government’s plan to loosen the lockdown that has been in place for many weeks.

Businesses want to return their employees to work but understand the need to do this safely.  There is a strong likelihood that the Government’s guidance (due to be issued on 10 May 2020) will require companies to prepare a risk assessment to control the risks arising from Covid 19 in the workplace.

The concept of assessing and controlling risk at work is not new. Businesses are required to control risks in the workplace as part of their existing duties to manage health and safety.

This requires businesses to consider what might cause harm to people and decide whether they are taking reasonable steps to prevent that harm. This process is something that businesses are already required to carry out by law. Under existing laws, if you have fewer than five employees you do not have to document the risk assessment that you complete, although that may not ultimately end up being the case in respect of Covid 19. Currently, any business with 5 or more employees must record its risk assessments in writing.

There is no requirement for SMEs to create huge volumes of documentation when producing a risk assessment. It is about identifying hazards, deciding who might be harmed by them and evaluating the risks to ensure that the business can identify and implement sensible measures to either eradicate or control the risks highlighted. Great emphasis is placed on the final stage of the process as it is these steps that ultimately ensure the health, safety and welfare of employees.

In reality, businesses who have an existing health and safety management system, will be entirely familiar with risk assessments and the process of controlling and managing risks to their employees and others who visit their workplaces.

The majority of SMEs already understand the need to assess and manage risks arising from their undertakings and are adept at doing so. They are used to operating compliantly in a way that enables them to manage their businesses safely and this does not detrimentally affect the operation of their organisation.

The Government is likely to take time to return the country to normal with the obvious need to avoid a second wave of infections from Covid 19. The measures implemented by SMEs to ensure that their employees and visitors can operate safely when interacting with their business will be critical in ensuring this objective is met.

This is likely to mean significant changes are required for many business and these changes will vary dramatically dependent on the sector in which the business operates. For example, a restaurant business may have to change its operations to only provide a takeaway menu. Office based businesses are likely to continue with a policy of homeworking for anyone who can. Factories will need to ensure that employees can operate safely in a socially distanced manner with the correct personal protective equipment.

There will be no panacea for the safe return to work.  It is likely that only broad guidance will be provided by the Government, with a level of support from the Health and Safety Executive.  The responsibility and duty to do this safely will remain with individual businesses and can only be done safely following a proper assessment of the risks arising.

Regulators will be able to use their enforcement powers against any businesses that do not comply with their obligations. 

It is vitally important that SMEs draw on the health and safety resources available within their own businesses and on the advice of health and safety consultants, where appropriate, to ensure that the return of their employees to work is handled safely by properly assessing and managing the risks arising from Covid 19.

We can help by signposting the resources available to employers and referring employers to well qualified and experienced health and safety consultants that we have worked with in the past.