Employers need to be aware of this increasingly important provision.
The emergence of a reportedly much more infectious strain of the coronavirus in the lead up to Christmas has now led to another national lockdown and raised questions about whether it is safe to come to work. Government guidance has made clear that people should not attend work if they are reasonably able to work from home. In particular, clinically extremely vulnerable people are advised to shield and not to attend work.
In the education sector the latest lockdown has led to partial school closures and a switch to remote learning for many pupils, with children of critical workers and children who are 'vulnerable' being allowed to attend school in person.
Just prior to the new lockdown, teaching and support staff unions advised their members not to attend schools on the grounds of safety and to send 'Section 44' letters to their employers to notify them of this.
This is not just an issue affecting schools. The current infection rates and new strains of the virus are likely to lead employees in all sectors to be concerned about attending work in person. In this article we consider whether employees can refuse to attend work during the latest lockdown.
Section 44 Employment Rights Act 1996
There is a specific protection granted to employees by s.44 of the Employment Rights Act 1996 (ERA). Specifically, s.44(1)(d) and (e) ERA provides that an employee has the right not to be subjected to any 'detrimental' act, or failure to act, by their employer on the basis that the employee left or refused to return to work or took appropriate steps to protect themselves because the employee believed they were in serious and imminent danger.
This protection is qualified in several ways. In order for the protection to apply an employee*:
1) must reasonably believe
2) that they, or other persons, were in serious and imminent danger
3) which the employee could not reasonably have been expected to avert
and so the employee left, proposed to leave, or did not return to, work.
*It is worth noting that recent caselaw supports this protection also applies to workers.
An employee will also be protected if they take 'appropriate steps' to protect themselves or other persons in these circumstances.
The question of whether an employee had the required 'reasonable belief' is partly subjective as the tribunal will consider what was in the employee's mind at the relevant time. The tribunal will then apply an objective test, considering whether it was reasonable for the employee to hold that belief in the circumstances. We consider below what this might mean in practice.
Importantly, the protection under s.44 is only triggered if an employee can show that they have suffered a 'detriment' either as the result of an action taken or not taken by their employer and that the action/ inaction was on the ground that the employee took the protected action.
Without all these elements, s.44 will not give an employee protection from the actions of their employer.
Will staff be protected if they refuse to work during the current lockdown?
Whether the s.44 protection applies to a particular employee will depend largely on the specific circumstances of the individual and their work environment. It is therefore difficult for employers to be certain that a tribunal would or would not find the employee's conduct to be protected. There is also very little case law to provide guidance and examples on this issue, and none to date in the context of a global pandemic. This is, quite literally, an unprecedented area of law and therefore it is very difficult to determine with any certainty whether s.44 applies in any one situation.
However, there are some key points which may help employers to weigh up the legal risks if an employee claims protection under s.44.
Reasonable belief of the employee
It is not enough under s.44 for an employee simply to say that they believed they or some other person was in serious and imminent danger which could not be averted. That belief must be reasonable, as determined by a tribunal.
In its assessment, the tribunal is likely to take into account relevant scientific advice about transmission of the virus at the time the refusal to work occurred, the particular risks applying in the workplace, and the risks to the individual who was allegedly in danger (such as any particular vulnerability to the virus). It will also consider any steps the employer has taken to reduce the risks.
In the context of the pandemic, employers are likely to need provide evidence to show that they have followed current advice, performed risk assessments and put mitigation into effect to reduce risks of transmission in the workplace to an acceptable level.
If an employer has rigorously carried out risk assessments, implemented risk mitigation, consulted with their employees / employee representatives about this and taken on board their feedback, it is less likely that a tribunal would find an employee's belief of serious and imminent danger to be reasonable.
Conversely, if an employer has taken steps to mitigate risk but has not informed or discussed this with their employees, an employee's belief in the danger is more likely to be found to have been reasonable.
It is also worth noting that it is not enough for an employee to say there was a danger – it must be serious and imminent and not capable of being averted, for s.44 to apply.
For this reason, it is hard to say if a tribunal would find a particular employee's belief that the danger was imminent to be reasonable. Imminence is likely to require a sufficient closeness in time and possibly space between the employee and the specific risk. We know from related case law that a potential or hypothetical risk is unlikely to be sufficient.
For the risk to be 'serious' it is likely that an employee will need to show that they believed there was more than merely a danger, but that the danger was serious to the person exposed to it. This belief of serious danger will also need to be objectively reasonable. Given the current number of hospital admissions and deaths due to Covid-19, and concerns in relation to the impact of 'long-Covid', it is possible that a tribunal would consider it reasonable to believe the danger was serious.
Applying this reasoning it is easy to see how the seriousness and imminence of danger could be met. But this will still depend on an individual's circumstances. For example, is the coronavirus both a serious and imminent danger to a 19 year-old employee with no underlying medical conditions when their employer has implemented and communicated the mitigation efforts it has taken at the workplace to make it 'covid secure' in line with government guidance?
Would the same conclusion be met if the individual were older and/ or had underlying health conditions and either were or were not categorised as clinically extremely vulnerable?
It is worth repeating that s.44 also applies to dangers which 'other people' are exposed to, which may mean that employees who have vulnerable family members and refuse to attend work can be protected under s.44.
Detrimental treatment because of a protective act taken by the employee
For the protection afforded by s.44 to apply, an employer must subject an employee to a detriment 'on the ground' of the employee's act to avoid danger. In essence, the employer must be shown to have victimised the employee on the balance of probabilities for an act covered by s.44. In practice, this means the burden is placed on the employer to show that they were not materially motivated by the employee's protected actions. A material motivation is one which is 'more than minor or trivial'.
A detriment is anything which is disadvantageous to the employee and might cover a decrease in pay, the loss of an opportunity or promotion, the withdrawal of certain benefits or being moved to a different role or department. Whatever the detriment is it must be shown to be significantly influenced by an action taken by the employee's protected conduct. It will not be enough for an employee to merely show they suffered a detriment, which means that there may be circumstances in which an employee may suffer a detriment and not succeed with a claim for breach of s.44.
For example, if an employee refuses to attend work because there is an imminent and serious danger of contracting Covid-19 and they are subsequently furloughed on reduced pay, the employee may have grounds to say the employer has breached s.44 if they can show their being placed on furlough on reduced pay was because of their refusal to attend work. An employer may defeat such a claim if it can show, for example, that regardless of the employee refusing to attend work the employer had decided to place the employee on furlough and can provide evidence for this (for example, because they furloughed employees in the same position who did not refuse to attend work on those grounds and there were clear wider business reasons for placing those employees on furlough).
Dismissing an employee for an act covered by s.44 is automatically unfair under s.100 ERA. Employers will therefore need to be careful to document the reason for any dismissal to show that the decision to dismiss was taken for another, potentially fair reason, in the event the employee claims protection under s.44.
Risks for employers
Whilst recent trade union advice to workers in the education sector to not attend work on health and safety grounds has grabbed a lot of headlines, in our view it is not possible to make blanket assertions about whether or not an employee can rely on s.44 ERA to refuse to attend work, not least because meeting the requirements of that protection will depend on the particular circumstances of the individual and the workplace.
Ultimately, the question of whether s.44 protection applies can only be determined by a tribunal or court following what is likely to be a protracted and costly legal process.
Employers should be aware that there is no cap on compensation where an employee is found to have been automatically unfairly dismissed for health and safety reasons under s.100, unlike in ordinary unfair dismissal claims. It is also possible for an employee to bring an unfair dismissal claim under s. 100 before they reach two years' service.
Tribunals can make financial awards for successful detriment claims under s.44 and in doing so will take into account the nature of the employer's infringement and any loss to the employee attributable to the employer's act or omission. It is possible for tribunals to also make injury to feelings awards based on the distress suffered by the claimant.
Employers will also need to be mindful that employees may alternatively claim protection via a health and safety whistleblowing action which will open up the possibility of injunctive relief (where a court is petitioned to order the employer to do or not do something). This may be tactically beneficial to employees who might otherwise face a lengthy wait to see their s.44 and/or s.100 ERA claim be processed through an employment tribunal, particularly during the pandemic.
Reducing the risks
From an employer's perspective the key actions and priorities to reduce risks of a claim will be the following:
- carry out risk assessments and identify and put into effect mitigation efforts;
- consult on risk assessments and mitigation with employees and their representatives including clear communication of and seeking feedback on risk assessments and mitigation;
- review risk assessments regularly and respond to changes in external and internal circumstances;
- if an employee refuses to attend work, be mindful of the risks of doing or not doing anything that would subject that individual to a detriment where this refusal is one of the reasons for the detriment;
- be clear about why decisions are made which might disadvantage the employee and set out these reasons in writing; this will be vital to evidence that the detriment is not linked to a refusal to attend work on health and safety grounds;
- consider what remote/home working the employee can support, since the refusal to attend work does not mean a refusal to work; and
- if furlough is an option, employees could be furloughed on full pay to avoid the detriment of reduced pay and benefits;
- if furlough is not available or appropriate, consider alternatives such as suspension on medical/ health and safety grounds on full pay.
It is important that employers are aware that, due to the broad scope of sections 44 and 100 ERA, their relative infrequency to date, and the lack of case law, a s.44 or s.100 claim could lead to significant management time and attention and legal costs. There are also employee relation issues and reputational risks in facing a tribunal claim based on health and safety concerns.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.