Health & Safety Unfair Dismissal

A return to the office for a lot of employees might elevate well being and security issues in gentle of the continuing pandemic. In some circumstances, staff might even refuse to return to the office throughout this worrying time.

The coronavirus presents a singular and unprecedented context for current well being & security guidelines, which require employers to take all worker issues about well being & security severely.

Employers have an obligation of care to make sure the well being and security of your employees, together with their emotional wellbeing. As well as, staff are protected by legislation from dismissal the place they held an inexpensive perception there was a danger of significant or imminent hurt within the office.

Many staff may have official issues about being within the office and travelling to work at the moment, so it’s critical that you simply take all affordable steps to guard your employees and allay their issues about being secure at work.

Nonetheless, given present challenges as a result of virus, employers clearly should stability the authorized problems with coping with such issues, whereas additionally making certain they’ve folks in place and doing the job wanted to satisfy the organisation’s necessities.

If an worker refuses to work for well being and security causes, what choices does an employer have?

Can an worker be dismissed in the event that they refuse to return to work?

By legislation, an worker could be pretty dismissed if the employer has a real and legitimate purpose and follows a good course of. Ordinarily, this might embody misconduct primarily based on any unauthorised absence from work or severe insubordination.

Within the context of coronavirus, the place an worker refuses to attend work as a result of fears about changing into in poor health or exposing different folks to a danger of contracting the virus, the place turns into a bit of extra difficult. Right here, the context of their refusal would have to be carefully thought of earlier than disciplinary motion was taken.

A lot will rely on the hottest public well being recommendation on the time you ask an worker to return to work, in addition to precisely what you might be asking the worker to do and the rationale given by the worker for his or her refusal. It could additionally rely on what different work choices can be found, akin to distant working or altering working and patterns to keep away from a rush hour commute.

The place, in accordance with the present well being and security tips, it’s arguably affordable to ask an worker to return to work and they’re unable to do business from home, then it might be open to you to instigate disciplinary proceedings for any unauthorised absence.

In severe circumstances, chances are you’ll even think about dismissal. Nonetheless, employers ought to word {that a} choice to dismiss might be challenged as unfair, and even discriminatory. For instance, within the context of the present pandemic, the place somebody is affected by a incapacity that exposes that individual to a excessive danger of significant sickness in the event that they catch coronavirus or they’re residing with somebody who’s classed as clinically susceptible.

When is a dismissal robotically unfair?

The legislation affords particular safety to staff (and employees from 31 Might 2021) who’re dismissed for drawing their employer’s consideration to well being and issues of safety regarding their office. The precise to not be unfairly dismissed for well being and security causes arises from part 100 Employment Rights Act (ERA) 1996.

The Employment Rights Act 1996 (Safety from Detriment in Well being and Security Instances) (Modification) Order 2021 extends the authorized protections of s44(1)(d)+(e) to incorporate employees. The statutory instrument applies to detriments on or after 31 Might 2021.

Part 100 ERA offers {that a} dismissal will likely be classed as robotically unfair the place the principal purpose for the dismissal is for any one of many following:

• For designated well being and security actions the place, having been designated by the employer to hold out actions in reference to stopping or lowering dangers to well being and security at work, the worker carried out, or proposed to hold out, any such actions – s.1(a)
• For being a delegated well being and security consultant of employees at work or member of a office security committee, the place the worker carried out, or proposed to carry out, any capabilities as a consultant or member of such a committee – s.1(b)
• For being an worker the place there was no such consultant or security committee, or it was not moderately practicable to lift the matter by these means, and for bringing to the employer’s consideration, by affordable means, circumstances linked with their work which they moderately believed had been dangerous or probably dangerous to well being or security – s.1(c)
• For leaving, proposing to go away or refusing to return to a harmful office or any harmful a part of their administrative center, the place an worker moderately believed that they had been in severe and imminent hazard and so they couldn’t be moderately anticipated to avert it – s.1(d)
• For taking or proposing to take acceptable steps or proposing to guard himself/herself or different individuals in circumstances of hazard that they moderately believed to be severe and imminent – s.1(e).

An worker’s refusal to return to work due to fears of coronavirus doesn’t fall squarely inside every one in every of these provisions. That mentioned, there are numerous eventualities through which the safety afforded to staff beneath part 100 ERA may probably come into play within the present local weather:

• Instance 1: beneath subsection (1)(d), the place an worker believes they’re prone to severe and imminent hazard by returning to work, for instance, the place the employer has didn’t take ample steps to cut back the danger of the unfold of the virus throughout the office. The worker wouldn’t have to show {that a} severe and imminent hazard existed, however merely that they moderately believed that attending work would put them in such hazard.
• Instance 2: beneath subsection (1)(e), the place an worker who lives with a high-risk member of the family refuses to return to work due to a worry that any lack of steps to facilitate social distancing would put them and their member of the family in danger. Once more, the worker would solely want to point out that their perception of significant and imminent hazard was affordable and that these steps had been taken to guard themselves or different individuals from hazard.
• Instance 3: beneath subsection (1)(c), the place an worker has raised issues with their employer concerning the lack of well being and security measures throughout the office to minimise the danger of coronavirus and they’re dismissed consequently.

Beneath part 44 ERA, any motion taken towards an worker that falls wanting a dismissal on the grounds set out above, may additionally quantity to an illegal detriment. This might embody, for instance, subjecting an worker to some type of disciplinary sanction or withholding pay from an worker who refuses to attend work as a result of an inexpensive perception that they’re in severe and imminent hazard within the office of contracting coronavirus.

What are the dangers of unfair dismissal on well being & security grounds?

On condition that the foundations regarding unfair dismissal and illegal detriment for well being and security causes may probably lengthen far and vast inside this unprecedented context, employers ought to train excessive warning when deciding on any type of disciplinary motion at the moment.

Any choice to dismiss might be challenged as unfair, and even discriminatory, probably leading to a declare for uncapped damages. Any declare for illegal detriment can even carry a vast award.

To say for robotically unfair dismissal or illegal detriment beneath the ERA there isn’t any qualifying service interval. Which means staff with lower than two years service might have a legitimate declare in the event that they moderately believed that they had been in severe and imminent hazard due to the danger of coronavirus, or they’ve raised issues with you a few lack of well being and security measures within the office, and have been dismissed or handled detrimentally consequently.

The place you fail to guard an worker’s well being and security, or deal with them detrimentally in response to a grievance, then they could be able to resign and declare constructive dismissal, relying on the circumstances. Additional, staff who’re involved that their employer just isn’t taking all sensible steps to advertise social distancing or observe the rules are being inspired to report the matter to their native authority or Well being and Security Government (HSE).

What steps could be taken to allay an worker’s issues?

In case you are asking staff to return to work, you could take all affordable steps to make your office secure, not solely to minimise any publicity to authorized motion introduced by disgruntled staff refusing work, but in addition to allay official issues raised by your employees and discharge your responsibility of care to maintain them secure.

The safety afforded to staff beneath the ERA additionally underlines the significance of efficient communication together with your workforce by way of the well being and security measures taken by you to minimise the danger of coronavirus.

Communication with staff is prone to be massively necessary at the moment, the place documenting that communication, listening to what staff should say and taking the mandatory steps to guard them will likely be important in demonstrating you have got acted pretty the place disciplinary motion is in any other case unavoidable.

You aren’t required nor anticipated to completely get rid of the danger of coronavirus, however by putting in appropriate measures to cut back any hazard, and by letting your employees know concerning the steps you have got taken, you might be additionally prone to keep away from a state of affairs of an worker refusing work.

It’s essential that you simply observe the federal government steering on maintaining the office secure within the context of coronavirus. The protection measures that you must put in place will rely on the character of what you are promoting, the bodily structure of your premises and the way you have got been buying and selling throughout lockdown. In some circumstances, companies haven’t been buying and selling in any respect the place everybody has been furloughed, while others have been buying and selling on a restricted foundation with solely important employees.

Additional steering on what security measures to implement in your explicit business sector could be sought from the HSE, though you will want to guard staff, so far as doable, from the danger of contracting coronavirus by:

• Finishing up a danger evaluation to determine the danger of coronavirus inside your office or increased danger teams, particularly the place staff are anticipated to work with or close to different folks, or you might be contemplating introducing bigger teams of employees again to work.
• Speaking together with your staff concerning the steps you’re taking to forestall the unfold of coronavirus, listening to their concepts about the best way to handle the dangers and maintaining them knowledgeable of any adjustments.
• Taking affordable steps to forestall the unfold of coronavirus, for instance, putting in social distancing measures, imposing further hygiene measures akin to hand-washing services, and offering PPE together with face masks, gloves and screens for work stations.
• Adopting versatile working measures, together with permitting staff to do business from home, or staggering shifts, to minimise social contact with others and keep away from overcrowding. You possibly can even supply further parking areas to keep away from issues about use with public transport.

How ought to unavoidable disciplinary motion be approached?

In some circumstances, regardless of putting in heath and security measures, an worker should still refuse to return to work. In these circumstances, chances are you’ll really feel you haven’t any possibility however to instigate some type of disciplinary motion towards them.

As with every disciplinary course of, you could be sure that you perform a full investigation of all of the information and conduct a listening to to supply the worker with an acceptable alternative to state their case and clarify their place. You might also think about conducting this session remotely.

There could also be issues of which you might be unaware that influence the equity of your choice, for instance, the place an worker is at the moment residing with somebody who’s shielding or has issues about their commute to work. You need to rigorously think about an worker’s justification for failing to attend work on this context earlier than taking any motion. You also needs to completely discover all different choices to allay an worker’s issues or accommodate their wants at the moment.

You need to take into consideration how any selections have been made in relation to different employees, making certain a constant strategy, while nonetheless having regard to the person circumstances of any given worker.

Lastly, all the time keep in mind that every case will flip by itself information, the place there isn’t any exhausting and quick rule. You have to be ready to be versatile, the place doable, and above all else be honest in how any unavoidable disciplinary motion is approached.

An worker refusing work can after all create some short-term operational issues, however by dealing with this with understanding you’ll be able to defend what you are promoting in the long term from a reputational danger, and keep away from any publicity to a declare for unfair dismissal on well being and security grounds.

Want help?

Our HR and employment legislation specialists advise and information employers on the best way to strategy workforce administration points akin to dismissals, together with these involving complicated points like well being and security. To minimise authorized dangers whereas defending what you are promoting’ industrial pursuits, converse to our consultants at this time.

Final up to date: 28 April 2021