So now that the slow movement back to workplaces has started, the next hot question will be this: “If I don’t want to go back in because I fear infection if I do, can my employer make me?”
The short and absolutely definitively answer to this is no. And yes. It cannot compel you to return but subject to certain conditions (below) you cannot then compel it either to keep paying you or to continue your employment.
Some of our clients’ employees have received stark emails in shouty capitals this week telling them categorically not to return to work and that if they don’t, their employer has to keep paying them regardless. Those emails do not appear to be claimed by any particular organisation, which is both telling and quite sensible. Telling, because if you thought that was a valid position on behalf of the working men and women of Britain, you would surely put your name to it. Sensible, since not doing so denies employers the ability to start claims against you for inducement to breach of contract and employees to sue you when, as a direct consequence of your advice, they lose their jobs. The true position is much more nuanced.
Sections 44 and 100 Employment Rights Act 1996 protect employees against detriment and dismissal respectively as a result of their taking certain steps to protect themselves or others. Probably key for return-to-workplace purposes (and the provision relied upon by our anonymous emailer above) is where “in circumstances of danger which the employee reasonably believes to be serious and imminent and which he could not reasonably be expected to avert, he left or … (while the danger persisted) refused to return to his place of work“.
There is obviously not much argument available to an employer at present that the danger from COVID-19 is not serious or imminent. Similarly, until a vaccine arrives, the danger persists. At the heart of this is therefore the requirement that the employee’s belief is reasonable. All sorts of people have all sorts of fears about the safety aspects of their workplace, from allegedly bullying managers to 5G making your teeth fall out, but it is only reasonable beliefs which attract protection under sections 44 and 100. Here we must make a careful distinction between fears which are real and understandable on the one hand, and those which are reasonable, legally-speaking, on the other. The two are not necessarily the same.
Much of what will be reasonable for these purposes depends on the employee’s state of knowledge. He will be assumed to be aware of government guidance around “COVID-secure” workplaces and of the information the employer has provided around the risk assessment it has carried out and the measures it has taken to comply with those requirements (and beyond, if that is the case). What might be a reasonable concern held in ignorance will be less so if given the full picture.
Employee beliefs may also be more reasonable if it is clear that employers are not following government guidance as best they can (remembering that it is not completely mandatory – the guidance states that the employer’s obligation is not to eliminate risk but only to reduce it to the “lowest reasonable practicable level”, and that the steps referred to are just those “usually” required). No workplace can be made definitively COVID-secure, any more than can any visit to the shop or any walk in the park. You can take your own precautions but you cannot control the actions of others. Therefore it will not be reasonable to demand or expect a 100% guarantee of freedom from the virus as a precondition of returning to work, just as you could not demand 100% certainty that you could never suffer any other form of workplace injury. But if there are obvious and remediable gaps in the precautions your employer is taking which would be proportionate to the extent to which they would reduce the risk of infection, then you would be entitled to say so. That would again gain you the protection of sections 44 and 100. If that gap were not then swiftly plugged, your belief that you were in circumstances of serious and imminent danger would be that much more reasonable.
Note also the reference in sections 44 and 100 to the employee not being reasonably expected to avert those circumstances. Within limits, this places some onus on the employee to look after himself, not rely wholly on the employer. The reasonableness of his belief will be assessed on the basis that where he could take the sort of daily precautions threaded throughout the government’s guidance, he does so.
Despite that, the primary burden of showing the employee’s belief not to be reasonable lies firmly on the employer. Once government guidance shifts to allow a return to work and the employer has taken all the steps incumbent on it (and made that clear to the employee), however, the position changes. The workplace is then “officially safe” and the boot is in practical terms on the other foot, i.e. for the employee to show why his particular belief is reasonable.
- if the employer does all it reasonably can and the employee knows it, an unspecific fear of infection at the workplace is unlikely to be deemed “reasonable”;
- therefore it would be open to the employer (after due process) to suspend pay or ultimately dismiss that employee if his refusal persisted;
- if the employee’s concern arises, as many will, not from the workplace but from the need to use public transport to get there in the first place, sections 44 and 100 are not engaged, so it would again be open to the employer in the end to terminate the employment;
- but NB disapplying section 100 does not mean that any resulting dismissal will necessarily be fair. That will still be judged on ordinary principles. Therefore, you will still need a fair process, to consider alternatives to dismissal and to look at how easy it would actually be to take the additional measures the employee seeks as a condition of his return (especially if he is disabled), whether you consider them strictly required or not.