What to do when an employee is too scared to come into work

As we have covered in a number of our Covid update blogs, one area of law which has received a new prominence in the post-Covid world has been that of employees refusing to attend work because they do not believe it to be safe, and relying on two statutory provisions to do so – s100(1)(d) (e) Employment Rights Act 1996 (ERA)  and s47B ERA.

Whistleblower’s protection: when does it apply here?

S47B covers what is more commonly known as “whistleblowing” protection – when an employee has raised public interest concerns, which can include health and safety, and then claims protection against being treated less favourably as a result.

Whilst this doesn’t directly deal with the employee who is refusing to attend work, an employee who is disciplined for refusing to attend work after raising a claim which comes within this Act could suggest that the reason for that disciplinary action was in fact their raising of concerns, rather than the stated reason.

Employers would be advised to take note that if an employee does raise concerns about the safety of the workplace, they must treat these carefully and ensure that they do not give rise to any suspicions of less favourable treatment or victimisation of the employee going forwards.

Section 100 protection: refusing to attend on safety grounds

The more directly relevant protection for employees who do not wish to return to the workplace comes in s100 ERA.

S100 (d) provides that dismissals can be automatically unfair if the employee is dismissed:

….in circumstances of danger which the employee reasonably believed to be serious and  imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work,

To come within this protection:

• There needs to be circumstances of danger
• The employee must believe them to be serious
• The employee must believe them to be imminent
• That belief must be reasonable
• The employee could not reasonably be expected to avert the danger,
• He must leave (or propose to leave) or (while the danger persisted) refuse to return to his place of work or any dangerous part of his place of work

Whilst s100 (e) goes on to confirm:

Or, in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger."

To come within this protection:

• The employee took steps
• The employee told the employer that they planned to take steps
• Those steps were appropriate
• Those steps were to protect himself
• Those steps were to protect others
• Protection sought was from the danger
• This must be judged on the basis of the circumstances of that case, and in particular, the employee’s knowledge and the facilities and advice available to him at the time.

Importantly, the harm in question doesn’t have to be emanating from the workplace, and can include danger caused by travel to work.

It is not hard to see how an employee can use s100 (d) and/or (e) to attempt to justify a decision to either stay away from work or refuse to return to work; or to refuse to work in, say, a particular area at work where the employee feels unsafe, or to insist on arriving or leaving late/early due to fears of travelling to work on public transport, for example.

Whether Covid still comes within the definition of “circumstances of danger” will be less clear, now that the government advice has changed and it is less clear cut when this will apply, and when it will not. For some employees, the danger will be more significant than others – those, for example, who are highly vulnerable.

What can employers do?

• Firstly, providing a Covid-secure workplace, and communicating clearly to employees about this will do much to reduce an employee’s ability to say that he had legitimate concerns within the protection. Providing employees with a clear channel to raise concerns, and responding to these will also assist with this. Employers should keep clear records of regular risk assessments, government advice, and how they communicate with their employees about this. They should also keep an eye on government advice, and in particular, any advice which would change the risk attached to attending workplaces, and update them accordingly.
  
  
• Secondly, having clear communication channels for reporting risks, and responding quickly to them, will limit the employee’s ability to show that it was necessary to, for instance, leave work and/or refuse to come into work and that if the employee does do that, it is unreasonable and outside the protection. An employee who is temporarily moved to a different location whilst concerns are assessed would find it difficult to show it was reasonable for them to have refused to attend work.
  
  
• Thirdly, employers will need to be cautious about applying rules, such as insisting on a return to the office, across the entire workforce without clear justification. Where employees have been able to work at home, and have, for example, a particular vulnerability, the employer should consider their case individually rather than applying a blanket rule across the board.
  
  
• Finally, being aware of how the protection applies, and ensuring that any response deals with the key elements of the s100 protection, and makes it clear how it does not apply, will also assist in ensuring that no valid claims are created. Early advice will reap rewards in these situations.