June 25, 2021
The law
According to the Employment Rights Act 1996 (“ERA”), an employee can refuse to come to work on the basis that they are, or reasonably believe themselves to be in, serious and imminent danger. If the employee is subsequently dismissed for their refusal to attend work on this basis, this dismissal could be classified as being automatically unfair.
Whilst this provision is rarely used in practice, it is likely that there will be an increase in employees attempting to rely on it in order to justify their refusal to return to the workplace. However, to what extent this provision will protect employees who refuse to return to the workplace due to concerns over Covid-19 remains uncertain.
Whilst a recent decision in the Employment Tribunal found that an employee’s general concerns about Covid-19 did not qualify as being a “serious and imminent danger” which justified their refusal to attend work during lockdown, this decision is not binding and every case will be decided on its own individual facts. It is therefore difficult for employers to be certain when an employee’s refusal to attend work will be protected under the ERA.
What factors are important here?
In determining whether an employee’s refusal to attend work is protected under the ERA, a Tribunal is likely to consider both the employees’ personal circumstances as well as any safety measures their employer has implemented to reduce the risk of contracting Covid-19. If the employer has carried out a Covid-19 risk assessment and taken reasonable steps to protect against the virus in the workplace, it is likely that they will be safe from this type of claim in most cases.
Personal circumstances
It is also likely that a Tribunal would also consider an employee’s personal circumstances before reaching this conclusion. For example, if an employee is considered to be extremely clinically vulnerable to Covid-19 and they are unable to be vaccinated for health reasons, it may be considered more reasonable for them to believe that they are in serious and imminent danger by attending the workplace.
Employers should therefore be cautious about implementing blanket policies and be willing to consider the concerns of individual employees before taking action in such cases.
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