What action should employers take if an employee refuses to work based on COVID-19 health and safety concerns?

With the scale and impact of the pandemic continuing, new and unprecedented measures have been put in place in an attempt to reduce the spread of COVID-19.  Commentators suggest that the current danger to public health and our great British workforce will subsist for the foreseeable future until a vaccine is found.

For employers that remain operational during the pandemic and whose employees are not on lay off or furloughed, the health and safety of their employees in the work place must remain of paramount importance.

Health and safety at work

In addition to ensuring that up to date advice from government and Public Health England is monitored and effective communication systems are in place to contact employees, employers should ensure that the workplace is safe, hygienic and disinfected and that there are measures in place to protect employees, as far as possible, from the risk of contracting Covid-19.

Measures could include:

• Carrying out risk assessments to identify risk areas and to identify higher risk groups;
• Increasing the frequency with which hard surfaces in the workplace are cleaned;
• Providing more cleaning equipment such as antibacterial wipes, hand sanitisers and soaps;
• Issuing appropriate personal protective equipment (PPE) to staff; and
• Implementing social distancing measures.

What should employers do if health and safety concerns are raised?

Daily news stories report concerns from front line health workers, bus drivers, teachers, factory workers, their union representatives and those in other industries raising concerns about safety at work during the pandemic. Concerns have also been raised about rogue employers who have in some cases been threatening staff that they will be at the 'front of the line' for future redundancies, if they refuse to turn up for work.

Assuming that an employee cannot reasonably and effectively work safely from home, employers should consider each case based on the circumstances of the individual employee.  

In normal times, if an employee refuses to attend work, employers often consider withholding pay (as the employee would not have been ready and willing to work) and/or commencing disciplinary proceedings (to consider allegations of misconduct or gross misconduct) which could ultimately result in dismissal (for being absent without leave, serious insubordination and/or failing to comply with a reasonable management instruction to attend work). 

During the pandemic, employers should carefully scrutinise any decisions by employees who have withdrawn their labour, before taking formal action against them, in order to mitigate the risk of claims further down the line.  

In each case where an employee has withdrawn their labour, employers ought to consider whether the employee has any underlying health concerns or conditions and/or falls into one of the categories the government has "advised" to work from home.  

Important considerations before taking any disciplinary action

Employers should keep in mind that taking disciplinary action against an employee who has withdrawn their labour due to a short term emergency or the pandemic could lead to claims before an Employment Tribunal. This includes claims of detriment, discrimination (if the employee in question is treated less favourably than others as a result of any characteristic which is protected under the Equality Act 2010) or, if the employee is dismissed for withdrawing their labour, unfair dismissal. 

Employers should beware during this exceptional time that unfair dismissal claims may progress, even if the employee in question does not have the requisite two years qualifying service required for ordinary unfair dismissal claims.  This is because the Law affords special protection to employees who are treated detrimentally or dismissed for drawing their employer's attention to health and safety issues.

What can be done to mitigate risk?

If an employee does withdraw their labour during the pandemic citing health and safety concerns, the first step is to have a sensible conversation with the employee to understand the rationale behind the employee's decision. This will enable employers to reflect and investigate what can be done to alleviate those concerns, which is essential before taking any action.  

It will be wise to consider any provisions in the employee's contract of employment concerning withdrawal of labour and circumstances when they may be entitled to contractual sick pay.  

If the employee is considered vulnerable and is therefore withdrawing their labour, it may be that the most appropriate course of action is to draw the employee's attention to the fact that they may be entitled to receive statutory sick pay, following recent government changes to SSP rules, subject to absence reporting procedures. 

Health and safety cases

Section 100(1)(c):  Where the employee uses reasonable means to bring to their employer's attention circumstances connected with their work that they reasonably believe are harmful or potentially harmful to health and safety. 

Section 100(1)(d): Where the employee refused to return to his place of work in circumstances of danger which the employee reasonably believed to be serious and imminent (and which the employee could not reasonably have been expected to avert). 

Section 100(1)(e):  Where the employee took or proposed to take appropriate steps to protect themselves or other persons from danger (in circumstances where the employee reasonably believed the danger was serious and imminent).

Protected disclosures

Section 103A of the ERA states that an employee who is dismissed shall be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. 

Whether such a disclosure will be considered to be a 'qualifying disclosure' for these purposes is set out in section 43B of the ERA, which includes a disclosure that tends to show "that the health and safety of any individual has been, is being or is likely to be endangered."

Uncapped awards of compensation

Employers are reminded that there is no fee for bringing a Tribunal claim and no cap on compensation that can be awarded to employees that are found by an Employment Tribunal to have been discriminated against or automatically unfairly dismissed for health and safety reasons or whistleblowing.