1. Built into every employment contract is an implied obligation on employees to obey lawful and reasonable instructions given by their employer. Over coming weeks and months, businesses will start to ask employees and workers to return to work. However, according to a recent survey conducted by the CIPD, 44% of employees are anxious about returning. How do you deal with people who refuse to return to work?
2. The first step is for you to do all that you can to put in place a safe system of work and to do that in conjunction with your workforce/ trade union or employee representatives, so that they have a say and can contribute to that exercise (see our previous article on this).
3. If, once you have put in place what you believe is a safe system of work, your employee still refuses to return to work as they “reasonably believe” that there is still a “serious and imminent danger”, then they may have certain protections (under ss44 and 100 of the Employment Rights Act 1996) from suffering a detriment or being dismissed for not returning (see further below). What constitutes a serious and imminent danger will differ from one employee to the next; for example, employees who are clinically vulnerable or have a family member who is clinically vulnerable may be in a different position to those at less risk.
4. Difficulties will arise if you believe you have put in place a safe system of work (which would mean that your instruction for them to return to work is reasonable) but an employee reasonably believes that returning to work would put them in serious and imminent danger (which would mean that their refusal to return is also reasonable). It does not matter if you disagree about the danger- the question is whether the employee’s perspective is reasonable. We look at what is reasonable below. Looking at situations on a case-by-case basis is advisable and other solutions, such as furlough, may need to be found.
5. Remember: there are still a number of workers who should not be required to return to work. These include: (a) workers who can work at home; (b) CEV workers (at least until the end of June 2020 but may be extended); and (c) workers who are required by public health guidance to self-isolate. For others, such as those with ongoing childcare needs, it may be more difficult to attend the workplace, at least on a full-time basis.
6. Also note: Workers do not have the ss44 and 100 ERA 1996 protections (as they are only available to employees) but, if certain conditions are met, workers may be able to utilise the whistleblowing protection (see further below). Also, other laws may come into play in certain situations such as discrimination laws to take account of protected characteristics e.g. age, disability and pregnancy and health and safety laws.
Employee / Worker protection if they refuse to return to work
Protection from detriment (s44 ERA 1996) and dismissal (s100 ERA 1996)
Day 1 right (no qualifying period of service required) and uncapped compensation (for any s100 automatic unfair dismissal)
Employees have protection from detriment and dismissal if they:
(a) leave (or propose to leave) or (while the danger persists) refuse to return to a place of work (or any dangerous part of their work) if the *employee* reasonably believes that staying at/ returning to work would put them in serious and imminent risk of danger and which they could not reasonably be expected to avert; or
(b) take (or propose to take) steps to protect themselves or other persons from the risk of serious and imminent danger.
Each of these sets of provisions requires “reasonable belief” on the part of the employee and a danger which is “serious and imminent”.
Points to note:
1. If the employee reasonably believes the threat is serious and imminent and it cannot reasonably be controlled then any dismissal would be automatically unfair.
2. Neither limb (b) workers nor the self-employed have this protection- it is only available to employees
3. Does this protection cover an employee’s commute to work (see below for our thoughts)?
What is the danger they fear?
In COVID-19 times, what is the danger likely to be? Risk of death would seem extreme/ unlikely. So, the more likely danger is catching COVID-19 and falling ill and/or being a silent carrier and taking it back (unbeknown to them) to their friends/ family. According to a recent report, four in five workers are apparently worried about putting their family at risk.
Do they have a “reasonable” belief?
At the moment, COVID-19 is overwhelmingly likely to amount to a serious and imminent risk in most workplaces. Therefore, the key question is whether the employee has a “reasonable belief” that they will be put in danger of catching COVID-19 despite the measures you are taking. In other words, is their fear of danger reasonable?
To ascertain if it is a reasonable belief, we suggest you take the following steps:
1. Show them the government guidance (i.e. one of the 8 sector specific guides) so they can see the adjustments that the government says you should put in place to reduce the danger.
2. Tell them that the requirement is to reduce the danger to “the lowest reasonable practical level”- see section 1.1 (i.e. inform them that there is no requirement to eradicate it altogether, as no workplace can definitely be made COVID-secure).
3. Tell them what adjustments you are making to reduce the danger.
4. Ask them what other adjustments they think you need to make.
5. Consider whether you can make those adjustments and, if not, why not (and make a note of your reasons).
Undertaking this exercise should help you assess if their belief is reasonable. It also follows that if you are able to make the extra adjustments the employee has requested, then any ongoing fear/ resistance to return to work is more likely to be unreasonable.
What about pay?
If the employee refuses to return to work, and, instead, stays at home (but is unable to work from home), is this paid or unpaid leave?
First, if you think that their belief is unreasonable (see above), it would be open to you to not pay them. If, however, their belief is more likely than not to be reasonable, then any decision not to pay them would likely be classed as a detriment which would leave you exposed to a s44 ERA 1996 claim.
That said, causation is key. If you can show that the reason for no pay is, instead, their absence from work (rather than related to the reason for their absence from work), this may justify unpaid leave but it is tricky and, in most cases, in this scenario, they should continue to be paid (otherwise you may face an unlawful deduction from wages claim as well).
Whistleblowing (section 43A-K ERA 1996)
Day 1 right (no qualifying period of service required) and uncapped compensation (for any automatic unfair dismissal)
Employees and workers who make “protected disclosures” are protected from suffering any detriment or dismissal as a result of making such a disclosure. For it to be “protected” their disclosure must be:
1. a “qualifying” disclosure, which means that the employee or worker must (a) make a disclosure of information (i.e. do more than just make a baseless allegation) that (b) relates to one of six types of “relevant failure” (here, it will be a breach of H&S laws in not providing a safe place of work) and (c) such disclosure must be in the public interest (even if partially motivated by self-interest);
2. made to one of the groups of people listed in the legislation, which includes you, as their employer, a legal adviser or a prescribed person (a list of whom can be found here but in the H&S context include HSE, local authorities and MPs ).
Can concerns about an unsafe working environment amount to a “protected disclosure”?
Yes, so long as they disclose information to you about their H&S concerns, this is likely to be classed as a “protected disclosure”. This is particularly the case given the H&S implications of COVID-19 and your obligation to follow the government guidelines and provide a safe working environment. Their disclosure can be oral or in writing. In the circumstances, any disclosure they make is likely to be in the public interest.
Note: They only need to have a “reasonable belief” that you have breached H&S laws; this means that they do not need to be correct in their belief since they are not expected to know the intricacies of complex H&S law. It follows that if an employee or worker refuses to return to work and this is accompanied by a disclosure of information that meets the definition of a protected disclosure, they will gain the protected status of a whistleblower i.e. they will be protected from dismissal/ detriment for having made such a disclosure.
Commute to work
1. On 11 May 2020, the government published a document outlining its recovery strategy, in which it said that, “When travelling everybody (including critical workers) should continue to avoid public transport wherever possible.”
2. According to the recent CIPD survey, 31% of those interviewed were anxious about commuting to work. However, those based in London were far more likely than other parts of the UK to have concerns about this, with 52% saying they were anxious about commuting to work because of COVID-19.
3. On this basis, if you have asked employees to return to work and their only way of getting to work is by using public transport, can they refuse to return because they reasonably believe that their commute poses a “serious and imminent” risk of danger (i.e. a danger of catching COVID-19), and be protected from being subjected to a detriment or dismissal under ss44 and 100 ERA 1996?
4. Currently, we don’t know. Whilst s44 and 100 ERA 1996 refer to a “place of work”, it is unclear whether that stretches to an employee’s commute to work on public transport. Arguably it does but it feels unlikely, especially because employers are not able to influence how safe a person’s commute to work is. Many commentators have referenced the case of Edwards and others v Secretary of State for Justice, where the EAT accepted that travel to work came within s44 ERA 1996. However, whilst that case concerned some prison officers who refused to travel to work in treacherous weather conditions (and subsequently suffered a loss of pay), that case did not involve public transport; the prison service had put on their own transport (first a 4x4 and later a minibus) for the last part of their journey to work and so took responsibility for that part of the journey. There has been no case which has considered the situation described above concerning unsafe public transport.
5. As such, a sensible approach should be taken and if one of your employees says they are worried about using public transport, you should consider:
6. Sharing with them the guidelines about traveling safely on public transport;
7. Talking to them about their fears and considering whether you can, for example:
- adjust their working hours so that they do not have to use public transport in rush hour (when social distancing will be pretty impossible); and/or
- allow them to start work a bit later to allow them to walk to work instead;
- Putting in place schemes at work (such as cycle to work schemes) that would allow them to avoid using public transport altogether, especially if walking to work is not an option; or
- Allowing them to work from home or keep them on furlough for a while longer.
8. Also remember that there is an implied duty in every employment relationship not to act in a way to destroy the relationship of trust and confidence between employee and employer and so even if a commute to work is outside of the ambit of ss44 and 100 ERA 1996, putting too much pressure on an employee to use public transport to commute to work may breach this obligation and justify them resigning and claiming constructive dismissal (if they have 2+ years’ service). You also have a common law duty to take reasonable care for the health and safety of your employees.
9. Whilst you should aim to treat everyone fairly, it is also important to assess each case on its facts. Everyone’s situation is different and specific attention should always be paid to their mental health (see here for some government guidelines of managing peoples’ mental health during this crisis).
The law is constantly changing and the position set out in this note may not be current. You should not rely on this note as a comprehensive statement of the law. Please contact us if you require specific legal advice on your situation.