Coronavirus and workplace health and safety

Author: Darren Newman

Darren Newman

One current issue for HR is those employees who are concerned about being required to come into work during the coronavirus crisis. Consultant editor Darren Newman considers what the health and safety provisions of the Employment Rights Act 1996 mean for such employees.

Can an employee refuse to go to work if they are worried about catching coronavirus? Not everybody can work from home. There are some jobs that have to be done in a particular workplace and by no means all of them involve the delivery of key services. Current government policy is that people should continue to go to work when working from home is impossible. There are, of course, some businesses - particularly in the leisure, retail and hospitality sectors - that have had to close their premises. However, there are others - in manufacturing, for example - that are permitted to continue operating and encouraged by government guidance to do so.

For many people it seems somewhat incongruous to be told so firmly to stay indoors - and risk being fined if they sit in a park, for example - yet be required to go to work every day.

There are two specific employment rights that may come into play. These apply to employees who, "in circumstances of danger" that they "reasonably consider to be serious and imminent", leave their place of work, refuse to return to it or take "reasonable steps" to protect themselves or others from the danger. Dismissing an employee for such conduct is automatically unfair (s.100 of the Employment Rights Act 1996) and it is also unlawful to subject an employee to any detriment on these grounds (s.44).

So will an employee who refuses to come to work because they are concerned about the risk of coronavirus be protected against detriment and dismissal? Does staying away from work count as a reasonable step to protect yourself from a serious and imminent danger?

The rights in the Act apply to all employees, regardless of the job they do. Firefighters, teachers and front-line NHS workers have the same rights to leave a dangerous workplace as any factory worker. If a nurse working with COVID-19 patients is not given the appropriate personal protective equipment (PPE), it is easy to see that they would have the right to leave the workplace because of the serious and imminent danger that the lack of proper equipment causes. We may have reason to be grateful to front-line workers prepared to carry on working in those circumstances, but it seems clear that they would have the right not to.

Away from front-line roles, however, an employee who is worried about the risk of going to work faces a number of obstacles in relying on these rights. The first is that there must be an objective danger. Coronavirus is certainly dangerous - and its spread is obviously a profound danger to public health. But that does not mean that there is an objective danger to an individual employee when they go to work. If no one in the workplace has coronavirus, there will in fact be no danger at all in being in the workplace. Is the potential that someone might have the virus enough to constitute "circumstances of danger"?

Assuming the existence of "circumstances of danger", the employee must then reasonably believe that the danger is "serious and imminent". If an individual is worried that someone at the workplace might have coronavirus - but has no specific reason to believe that they do - does that give reasonable grounds for a belief that danger is imminent? What grounds for that belief could they have?

If an employer fails to take the steps that the Government recommends for those employers that continue to operate during the crisis, that might persuade a tribunal that an employee's belief in imminent danger was a reasonable one. But let's suppose the employer has done all that it sensibly can to reduce the risk. If appropriate procedures are put in place and the right PPE provided, it would be difficult for an employee to argue that they are in serious and imminent danger in the workplace. If they are, it seems impossible that the employer could continue to operate without being in breach of health and safety law.

If the danger perceived by the employee does not arise from anything the employer has done that is careless or irresponsible, but is simply the background danger that we all face when we leave our home, it is difficult to see how there could be a right for the employee to refuse to come to work.

The health and safety rights in the Employment Rights Act 1996 are intended to deal with issues such as faulty or inadequate equipment or poor maintenance that make the workplace itself dangerous. They are a poor fit for a more general concern about the dangers inherent in coming into contact with others - especially if there is no reason to believe that there are any specific circumstances exacerbating the danger.

Employers should, of course, deal sympathetically with employees who are particularly anxious about coming into work. Just because a dismissal would not be automatically unfair under s.100 of the Employment Rights Act 1996, that does not mean that it would be reasonable. This is a time of genuine concern and anxiety for many, and a reasonable employer will take account of that. Employers should deal with employees with caring responsibilities or particular vulnerabilities to the virus in a sympathetic way. They could, for example, explore the possibility of placing employees who do not feel comfortable coming into work on furlough. The Coronavirus Job Retention Scheme is not limited to cases where the only alternative is redundancy - what matters is that the instruction not to work is given because of circumstances arising from coronavirus.

However, if an employer is operating legally and has done all that can reasonably be expected to ensure proper workplace hygiene and social distancing, it is entitled to ask employees who cannot work from home to come into work. How it should deal with those who refuse to do so will depend on the circumstances. But it cannot be the case that the possibility of catching coronavirus means that employees have a blanket right not to come to work backed up by the health and safety provisions in the Employment Rights Act.