From May 31st, workers will gain the same rights as employees who take steps to protect themselves or others in certain health and safety situations. As more people return to work as the government relaxes Covid-19 restrictions this may seem a big step forward, but the rights come with conditions and responsibilities.
Current Health and Safety Protection
Currently sections 44 and 100 of the Employment Rights Act 1996 protect employees against detriment and dismissal resulting from the employee taking steps to protect themselves or others in certain health and safety situations.
To fully understand the implications, three parts of the statement above need to be understood. The definition of detriment is any disciplinary action or suspension of pay. The health and safety situations covered include “circumstances of danger which the employee reasonably believes to be serious and imminent and which he could not reasonably be expected to avert”. Finally, the steps taken by an employee to protect themselves or others include the employee leaving or refusing to return to their place of work while they judge the danger persists.
Earlier this year the government issued an Order extending the health and safety detriment protection to workers. The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 comes into force on 31 May. From that date, workers are also to be covered by section 44 of the act and will therefore share the right not to be subjected to a detriment if they leave their workplace (or refuse to return to their workplace) because they reasonably believe they are in serious or imminent danger.
However, the amendment only applies to section 44 of the Act. Section 100 of the Employment Rights Act declares the dismissal of an employee in the above circumstances to be unfair. Workers who are not employees do not have unfair dismissal rights.
Reasonable Or Not?
Originally, sections 44 and 100 of the Act applied where employees worked in potentially hazardous workplaces. However, the pandemic has meant many workplaces have become potentially hazardous. In fact, the Coronavirus Act 2020 states that the coronavirus poses a ‘serious and imminent danger’.
So does the combination of the Coronavirus Act, Employment Rights Act 1996 and the new Amendment mean any employee and worker can now refuse to continue at or return to work? One major deciding factor is whether the individual’s belief that they are in danger in a workplace is reasonable.
What will be considered reasonable depends on the employee’s or worker’s level of knowledge. An individual’s concern will not be considered valid if it is maintained in ignorance. For this reason, the worker or employee is assumed to be aware of government guidance related to ‘Covid-secure’ workplaces, and of the information the employer has provided about the risk assessment it has carried out and the measures it has taken.
A belief of danger may be reasonable if it is clear that employers are not following government guidance as best they can. An employer’s obligation is not to eliminate risk totally but to reduce it to the ‘lowest reasonable practicable level’. Therefore, it will not be considered reasonable to demand or expect a 0% chance of infection as a precondition of returning to work, just as it would be unreasonable to demand a 0% chance of suffering any type of workplace injury.
However, if there are obvious remediable gaps in the precautions an employer has taken which would be proportionate to the extent to which they would reduce the risk of infection, then the employee or worker would be within their rights to point these out and have the protection of section 44 of the Employment Rights Act. If the gaps causing concern were not swiftly addressed, a belief that there were circumstances of serious and imminent danger would be considered reasonable.
If an individual has to visit premises as part of their work it will be hard for them to be considered reasonably believing they are endangered if the location is ‘Covid-secure’ as defined by government guidelines, had that made clear to them in communications or notices, and the precautions are clearly in place when they arrive at the premises.
Notice also that the above protections only apply at a place of work. If an individual’s concern arises from needing to use public transport to get to premises, sections 44 and 100 of the Employment Rights Act are not applicable.
Note also the reference in the Act to an employee or worker not being ‘reasonably expected to avert’ the circumstances of danger. Within limits, this places some onus on the employee or worker to look after themself and not rely wholly on the employer. The reasonableness of a belief of danger would be assessed on the basis that they would take the sort of precautions given in the government’s guidance where they could.
The primary burden of showing the employee’s or worker’s belief is unreasonable lies firmly with the employer. However, if the employer has taken all the steps incumbent on it and made that clear to those working for it, the position changes. The workplace would be considered ‘officially safe’ and it is up to the employee or worker to show why their belief in danger is reasonable.