Health & safety unfair dismissal

A return to the workplace for many staff may raise health and safety concerns in light of the ongoing pandemic. In some cases, employees may even refuse to return to the workplace during this worrying time.

The coronavirus presents a unique and unprecedented context for existing health & safety rules, which require employers to take all employee concerns about health & safety seriously.

Employers have a duty of care to ensure the health and safety of your staff, including their emotional wellbeing. In addition, employees are protected by law from dismissal where they held a reasonable belief there was a risk of serious or imminent harm in the workplace.

Many employees will have legitimate concerns about being in the workplace and travelling to work at this time, so it is vital that you take all reasonable steps to protect your staff and allay their concerns about being safe at work.

However, given current challenges due to the virus, employers clearly must balance the legal issues of dealing with such concerns, while also ensuring they have people in place and doing the job needed to meet the organisation’s requirements.

If an employee refuses to work for health and safety reasons, what options does an employer have?

Can an employee be dismissed if they refuse to return to work?

By law, an employee can be fairly dismissed if the employer has a genuine and valid reason and follows a fair process. Ordinarily, this could include misconduct based on any unauthorised absence from work or serious insubordination.

In the context of coronavirus, where an employee refuses to attend work due to fears about becoming ill or exposing other people to a risk of contracting the virus, the position becomes a little more complicated. Here, the context of their refusal would need to be closely considered before disciplinary action was taken.

Much will depend upon the most up to date public health advice at the time you ask an employee to return to work, as well as exactly what you are asking the employee to do and the reason given by the employee for their refusal. It may also depend on what alternative work options are available, such as remote working or altering working and patterns to avoid a rush hour commute.

Where, in accordance with the current health and safety guidelines, it is arguably reasonable to ask an employee to return to work and they are unable to work from home, then it may be open to you to instigate disciplinary proceedings for any unauthorised absence.

In serious cases, you may even consider dismissal. However, employers should note that a decision to dismiss could be challenged as unfair, and even discriminatory. For example, in the context of the current pandemic, where someone is suffering from a disability that exposes that person to a high risk of serious illness if they catch coronavirus or they are living with someone who is classed as clinically vulnerable.

When is a dismissal automatically unfair?

The law affords special protection to employees (and workers from 31 May 2021) who are dismissed for drawing their employer’s attention to health and safety issues relating to their workplace. The right to not be unfairly dismissed for health and safety reasons arises from section 100 Employment Rights Act (ERA) 1996.

The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 extends the legal protections of s44(1)(d)+(e) to include workers. The statutory instrument applies to detriments on or after 31 May 2021.

Section 100 ERA provides that a dismissal will be classed as automatically unfair where the principal reason for the dismissal is for any one of the following:

• For designated health and safety activities where, having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out, or proposed to carry out, any such activities – s.1(a)
• For being a designated health and safety representative of workers at work or member of a workplace safety committee, where the employee performed, or proposed to perform, any functions as a representative or member of such a committee – s.1(b)
• For being an employee where there was no such representative or safety committee, or it was not reasonably practicable to raise the matter by those means, and for bringing to the employer’s attention, by reasonable means, circumstances connected with their work which they reasonably believed were harmful or potentially harmful to health or safety – s.1(c)
• For leaving, proposing to leave or refusing to return to a dangerous workplace or any dangerous part of their place of work, where an employee reasonably believed that they were in serious and imminent danger and they could not be reasonably expected to avert it – s.1(d)
• For taking or proposing to take appropriate steps or proposing to protect himself/herself or other persons in circumstances of danger that they reasonably believed to be serious and imminent – s.1(e).

An employee’s refusal to return to work because of fears of coronavirus does not fall squarely within each and every one of these provisions. That said, there are various scenarios in which the protection afforded to employees under section 100 ERA could potentially come into play in the current climate:

• Example 1: under subsection (1)(d), where an employee believes they are at risk of serious and imminent danger by returning to work, for example, where the employer has failed to take sufficient steps to reduce the risk of the spread of the virus within the workplace. The employee would not need to demonstrate that a serious and imminent danger existed, but simply that they reasonably believed that attending work would put them in such danger.
• Example 2: under subsection (1)(e), where an employee who lives with a high-risk family member refuses to return to work because of a fear that any lack of steps to facilitate social distancing would put them and their family member at risk. Again, the employee would only need to show that their belief of serious and imminent danger was reasonable and that these steps were taken to protect themselves or other persons from danger.
• Example 3: under subsection (1)(c), where an employee has raised concerns with their employer about the lack of health and safety measures within the workplace to minimise the risk of coronavirus and they are dismissed as a result.

Under section 44 ERA, any action taken against an employee that falls short of a dismissal on the grounds set out above, could also amount to an unlawful detriment. This could include, for example, subjecting an employee to some form of disciplinary sanction or withholding pay from an employee who refuses to attend work due to a reasonable belief that they are in serious and imminent danger in the workplace of contracting coronavirus.

What are the risks of unfair dismissal on health & safety grounds?

Given that the rules relating to unfair dismissal and unlawful detriment for health and safety reasons could potentially extend far and wide within this unprecedented context, employers should exercise extreme caution when deciding on any form of disciplinary action at this time.

Any decision to dismiss could be challenged as unfair, and even discriminatory, potentially resulting in a claim for uncapped damages. Any claim for unlawful detriment can also carry an unlimited award.

To claim for automatically unfair dismissal or unlawful detriment under the ERA there is no qualifying service period. This means that employees with less than two years service may have a valid claim if they reasonably believed that they were in serious and imminent danger because of the risk of coronavirus, or they have raised concerns with you about a lack of health and safety measures in the workplace, and have been dismissed or treated detrimentally as a result.

Where you fail to protect an employee’s health and safety, or treat them detrimentally in response to a complaint, then they may be in a position to resign and claim constructive dismissal, depending on the circumstances. Further, employees who are concerned that their employer is not taking all practical steps to promote social distancing or follow the guidelines are being encouraged to report the matter to their local authority or Health and Safety Executive (HSE).

What steps can be taken to allay an employee’s concerns?

If you are asking employees to return to work, you must take all reasonable steps to make your workplace safe, not only to minimise any exposure to legal action brought by disgruntled employees refusing work, but also to allay legitimate concerns raised by your staff and discharge your duty of care to keep them safe.

The protection afforded to employees under the ERA also underlines the importance of effective communication with your workforce in terms of the health and safety measures taken by you to minimise the risk of coronavirus.

Communication with employees is likely to be hugely important at this time, where documenting that communication, listening to what employees have to say and taking the necessary steps to protect them will be vital in demonstrating you have acted fairly where disciplinary action is otherwise unavoidable.

You are not required nor expected to entirely eliminate the risk of coronavirus, but by putting in place suitable measures to reduce any danger, and by letting your staff know about the steps you have taken, you are also likely to avoid a scenario of an employee refusing work.

It is crucial that you follow the government guidance on keeping the workplace safe in the context of coronavirus. The safety measures that you need to put in place will depend on the nature of your business, the physical layout of your premises and how you have been trading during lockdown. In some cases, businesses have not been trading at all where everyone has been furloughed, whilst others have been trading on a limited basis with only essential staff.

Further guidance on what safety measures to implement for your particular industry sector can be sought from the HSE, although you will need to protect employees, as far as possible, from the risk of contracting coronavirus by:

• Carrying out a risk assessment to identify the risk of coronavirus within your workplace or higher risk groups, especially where employees are expected to work with or near other people, or you are considering introducing larger groups of staff back to work.
• Communicating with your employees about the steps you are taking to prevent the spread of coronavirus, listening to their ideas about how to manage the risks and keeping them informed of any changes.
• Taking reasonable steps to prevent the spread of coronavirus, for example, putting in place social distancing measures, imposing additional hygiene measures such as hand-washing facilities, and providing PPE including face masks, gloves and screens for work stations.
• Adopting flexible working measures, including allowing employees to work from home, or staggering shifts, to minimise social contact with others and avoid overcrowding. You could even offer additional parking spaces to avoid concerns about use with public transport.

How should unavoidable disciplinary action be approached?

In some cases, despite putting in place heath and safety measures, an employee may still refuse to return to work. In these circumstances, you may feel you have no option but to instigate some form of disciplinary action against them.

As with any disciplinary process, you must ensure that you carry out a full investigation of all the facts and conduct a hearing to provide the employee with a suitable opportunity to state their case and explain their position. You may also consider conducting this session remotely.

There may be matters of which you are unaware that impact the fairness of your decision, for example, where an employee is currently living with someone who is shielding or has concerns about their commute to work. You should carefully consider an employee’s justification for failing to attend work in this context before taking any action. You should also thoroughly explore all alternative options to allay an employee’s concerns or accommodate their needs at this time.

You must take into account how any decisions have been made in relation to other workers, ensuring a consistent approach, whilst still having regard to the individual circumstances of any given employee.

Finally, always remember that each case will turn on its own facts, where there is no hard and fast rule. You must be prepared to be flexible, where possible, and above all else be fair in how any unavoidable disciplinary action is approached.

An employee refusing work can of course create some short-term operational problems, but by handling this with understanding you can protect your business in the long run from a reputational risk, and avoid any exposure to a claim for unfair dismissal on health and safety grounds.

Health & safety unfair dismissal FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.