Do employees have the right to refuse going into work?

In light of a recent tribunal case, Benedict Gorner explores whether people have a statutory right to not go into work over health and safety fears relating to Covid

Do employees have the right to refuse going into work?

Issue

All employees (and workers from 31 May 2021) have a statutory right not to be subjected to any detriment or dismissed for refusing to come to work in circumstances where they hold a reasonable belief that they are in ‘serious and imminent danger’. The statutory protection is contained in the Employment Rights Act 1996, section 44 in relation to detriment and section 100 in relation to dismissal. 

The circumstances that can give rise to a belief there is a risk of danger can include the behaviour of work colleagues. Case law in the past has shown that it can apply where an employee has feared that a colleague may assault them. 

At the current time it might extend to other conduct by colleagues, including not complying with social distancing rules and so leading the individual to reasonably believe they are at risk of infection. The case of Mr Rodgers v Leeds Laser Cutting is one of the first to consider the application of the statutory protection where the employee’s concern relates to the risk of coronavirus infection in the workplace.

Facts

Rodgers had started work on 14 June 2019 as a laser operator. The warehouse where he was employed was very large, estimated at around 12,000-14,000 square feet and being described as the size of half a football pitch. It was big enough to accommodate a skip or forklift being left on the shopfloor. 

Rodgers was part of a team of five people who worked together at the premises. 

In early March 2020, one of the team had displayed Covid symptoms and had been sent home. On 23 March 2020, following the announcement of a national lockdown, new procedures had been put in place to guard against infection. These included social distancing, staggered start and break times, wiping down surfaces and frequent handwashing. 

However, on 27 March 2020, Rodgers left work and two days later informed his manager that he was staying away from work until the lockdown eased because of the vulnerability of his family. He did not return to work and later brought a claim that he had been automatically unfairly dismissed. 

Decision

The Leeds Employment Tribunal held that Rodgers’ decision to stay off work was not directly linked to his working conditions. Given the workplace setting, he could reasonably have been expected to avert any dangers by abiding to the guidance at that time, namely by socially distancing within the large, open workspace, by using additional personal protective equipment if he wished to do so, and by regularly washing/sanitising his hands.

He had not shown that he reasonably believed that the circumstances in work presented serious and imminent danger. Furthermore, it was found that the steps he took in absenting himself entirely were not appropriate and that he did not take appropriate steps to communicate any belief that there were circumstances of serious and imminent danger to his employer. It was concluded that the statutory protection did not apply. 

Key points 

For the purposes of this statutory protection, the issue is whether the employee or worker reasonably and genuinely believes they are in serious and imminent danger. The protection may apply where the employee or worker was wrong and there was no danger – the question is whether the employee’s or worker’s belief is reasonable. 

While this claim failed the statutory provisions providing protection in circumstances of serious and imminent danger, the provisions may apply to a situation where the employee raises concerns relating to Covid risks. 

It will be fact dependent as to whether the employee is staying off work because of working conditions that pose a risk or whether they have decided to stay at home as a precautionary measure. This will need to be carefully assessed taking into account what has been communicated regarding the particular risks in the workplace.

Benedict Gorner is an employment partner at Gateley Legal