Despite the government instruction that only “essential” workplaces will continue to operate under the COVID – 19 lockdown, many workplaces are still open for business as usual. The headlines around employers such as Sports Direct clearly show that for some bosses the pursuit of profit far exceeds the health and safety of their workforce.
As the death toll in Scotland today reached to 22 today, many employees who are still attending work may be asking “What protections do I have if I refuse to attend work?” This post will look at the relevant legislation and the misinformation on social media regarding legal protections in the coronavirus pandemic.
I have seen people posting about s44 on social media, what is s44?
Although s44 of the Employment Rights Act 1996 might be helpful to put added pressure on employers, it does not guarantee a legal remedy where an employee removes themselves from the workplace due to fears of COVID-19. It certainly does not provide employees with a right to withdraw from and refuse to return to a workplace that it in unsafe, as has been publicised incorrectly by some on social media. The wording of the legislation is far more precise than this and it is worth noting that Parliament’s intention when legislating for this provision did not have a pandemic like COVID 19 in mind.
Section 44 provides that an employee has the right not to be subject to detriment where he or she acts in circumstances of danger which they reasonably believe is serious and imminent. If the employee has a genuine and reasonable belief that they cannot avert the danger, he or she is entitled to remove themselves from harm’s way.
What about s100?
Similarly s100 of the same Act provides that an employee will be considered unfairly dismissed if he or she is dismissed due to leaving the workplace in circumstances of danger which they reasonably believe is serious and imminent and where the employee reasonably believes that they cannot avert that danger. S100 does not give someone an absolute right to withdraw their labour if they feel the workplace is unsafe, again the wording is for more precise than this.
Can I use s44 or s100 to tell my boss I am not returning to work?
Yes you can, however there is absolutely no guarantee that should you do this and then be dismissed or be subject to detriment that you would have any legal remedy. In sum, you can make this argument to your employer and you may be successful, but you might not be able to sue for unfair dismissal or detriment later down the line.
As this pandemic is so unprecedented, we really do not know whether the courts will interpret an employee’s fear of contracting COVID-19 as falling within the definitions of serious and imminent danger as set out above.When considering whether s44 and/or s100 would apply to a case where an employee withdraws their labour due to the threat of COVID 19 an Employment Tribunal would require to ask two questions;
- Is the employee’s perceived risk of contracting coronavirus a danger which is serious sand imminent?
- does the employee reasonably believe that they cannot avert the danger?
Although each case is very much fact specific, in the past the courts have considered that situations like; the risk of being attacked by a fellow employee, being exposed to asbestos whilst at work, and being made to travel on a dangerous snow covered road to fall within this statutory definition of serious and imminent danger which the employee believed they could not avert. There is absolutely no guarantee that a Tribunal would consider that s100 would apply if an employee is dismissed for refusing to follow a reasonable management instruction and walking off site due to fear over COVID -19 and similarly there is no guarantee that an Tribunal would consider that s44 would apply if an employee was subject to detriment for doing same.
Although employees may have a genuine moral imperative to socially distance and to prevent the spread of coronavirus, at this stage we do not know how broadly the courts will be prepared to construe the definition of serious and imminent danger. As such, trade unions should be cautious regarding any information sent out to members which would suggest that employees are fully protected by s100 and s44 of the Employment Rights Act 1996, and, although utilising this legislation may be helpful industrially, we cannot say for certain that employees would have a successful legal remedy should they be dismissed or subject to detriment for acting in contravention of their employers instructions to prevent the spread of COVID -19.
Blog by Alice Bowman, Employment Team