Yesterday (10 May 2020), Prime Minister Boris Johnson unveiled a strategy to ease the lockdown restrictions.
As part of this new plan, the Prime Minister stated that from this week people in England who cannot work from home will be “actively encouraged” to go into workplaces. This does not appear to introduce any significant changes to the restrictions already in place. Currently, people who cannot work from home can be asked by employers to attend workplaces. The ambiguity of the new guidelines is likely to be a cause of confusion for many employers, who may be trying to figure out whether they should now be requiring workers to return to the workplace
Right to refuse to return to work in circumstances of danger
Many employees may be asked by employers to return to workplaces, even if the employees are concerned this will put themselves and their families at risk of COVID-19 infection.
The government is to release guidance for businesses to make workplaces ‘Covid-secure’. At the time of writing, the guidance is yet to be published. However, the media has reported that the guidance includes suggestions to stagger arrival and departure times of workers, washing uniforms at work rather than at home and introducing handwashing and hand-sanitisation areas. Presumably, it will not be compulsory for businesses to implement the guidance.
Employees who are asked to return to work despite health and safety concerns relating to COVID-19 should be aware of their rights under the Employment Rights Act 1996 (‘the Act’). Under sections 44 and 100 of the Act, it is unlawful for an employee to be subjected to a detriment or dismissed for leaving or refusing to return to their workplace in circumstances of danger. The employee has to reasonably believe that the danger is serious and imminent. It has to be the case that, in the circumstances, the employee cannot reasonably be expected to avoid the danger. In many workplaces, it may be the case that employees cannot avoid the risk of COVID-19 infection, especially where effective measures have not been put in place by employers to mitigate this risk.
If an employee does not feel their employer has taken the necessary measures to make the workplace safe to work in, in light of the COVID-19 pandemic, they may have grounds to refuse returning to the workplace until the appropriate measures have been put in place.
The law also protects workers from being subjected to detriment or dismissed for making a ‘protected disclosure’ relating to health and safety concerns. A protected disclosure can include a worker raising concerns that their health and safety is being put at risk, or that the employer is breaching its legal obligations in respect of the health and safety of its workers.
Where a worker makes a protected disclosure, it would be unlawful for an employer to subject them to a detriment or dismiss them because of the protected disclosure.
As the government moves towards gradually lifting the lockdown restrictions, employees should be aware that they can take steps to protect their health and safety. On raising health and safety concerns directly with their employer, workers and employees should not be subjected to a detriment or dismissal as a result.
Written by Yavnik Ganguly – Paralegal, Employment and Professional Discipline Team