Under an employment contract, there is an implied term requiring the employee to follow reasonable instructions, and this will include that employees are to attend work. So what happens if an employee refuses to attend because of concerns about catching coronavirus?
Under normal circumstances, if an employee refused to attend work, they would be disciplined or potentially dismissed. However, in the current situation, employers must be careful of claims for unfair dismissal and for detriment suffered.
Under section 100 of the Employment Rights Act 1996, an employee who is dismissed shall be regarded as unfairly dismissed if they leave the workplace where they believe that the danger is serious and imminent and the belief cannot reasonably be averted or if they took appropriate steps to protect themselves from this danger.
The key point here is that the employee’s view is subjective and the test is based on their perspective. To avoid employees having this view, employers should make sure they take steps to make staff feel safe: provide facilities for home working, carry out regular risk assessments and provide adequate PPE.
Section 44 of the Employment Rights Act further protects employees and provides them with another cause of action against their employer under health and safety grounds, using similar statutory tests.
What can employers do?
Consider alternatives to taking disciplinary action or subjecting employees to detriment
The employer should be proactive in speaking to the employee to determine their specific issues and concerns and then work with them to look at alternative options. Can staff work from home? If not, what specific public health advice is available? Can the employee be placed in an alternative role in the business in which they do feel safe?
Use effective communication
Employers should take steps to prevent their employees feeling unsafe by providing PPE where required, providing measures for home working and carrying out continuous risk assessments.
All measures should be visible and well communicated to employees. Employers should also ensure they document any conversations they have with their staff regarding their fear or their reason for their unauthorised absence. If an employee does then decide to bring a claim, the employer will need to evidence that they took all reasonable steps to enable the employee to return to work.
Consider the needs of vulnerable employees
Some staff will be at higher risk if they contract the virus than others and employers should consider this and remember that employees will have different needs. For example, if an employee has asthma or a suppressed immune system, steps should be taken to ensure they are safe and, importantly, feel safe and the employer should recognise that these individuals are more likely to feel in danger than those without these conditions.
What a tribunal will consider
An employment tribunal will consider two questions:
- Is the employee's perceived risk of contracting the coronavirus serious or imminent?
- Does the employee reasonably believe that they will not be able to avert this danger?
Both of these questions are based on the employee's perception, which makes it difficult for employers. As a result, employers should be wary of dismissing or detrimenting employees for fear of the litigation; however, there are measures that can be taken.
Businesses should consider ongoing public health advice and work with trade unions and other companies to ensure their employees are adequately protected in the workplace and that they feel safe to attend work.
Employers should take precautions so that employees do not perceive there to be a serious and imminent risk of contracting the virus and that they are assured their employer has taken measures to avert the danger. Remember, tribunals are unlikely to have seen claims of this specific context before.
The key is that claims of this nature will be subjective and a tribunal must be careful to not allow abuse of process from disgruntled employees based on the tests in section 44.
It also remains to be seen how stringent the tribunals will be. It would be unfair on employers to be in a situation where they have no options against employees who refuse to return to work. We must also be cognisant of the fact that Covid-19 could be a fact of life moving forward, so employers will need to find strategies to support employees who have genuine and justifiable concerns.
Mark Lello is a partner and head of commercial, and Molly Dilling a trainee solicitor, at Parker Bullen