Coronavirus: Can employees be dismissed for refusing to attend?

Can an employer dismiss or discipline an employee that refuses to attend work because they believe that it is unsafe to do so because of Coronavirus?

Boris Johnson is expected to address the nation on Sunday to set out his “roadmap” to get the UK out of lockdown. One of items that is speculated to be addressed is the introduction of measures to reopen certain workplaces that have been closed as a result of the Coronavirus pandemic.

Whilst the government will almost certainly encourage employers to put into place a number of stringent measures to protect their staff whilst at work, it is probable that a significant minority of staff members will refuse to attend work because they feel that it is unsafe to do so. This could be for a range of reasons, for example, because they are worried that they will catch Coronavirus whilst at work, or they are concerned about contracting the virus and passing it on to a vulnerable member of their household.

This blog explores the protection employees have from being dismissed or disciplined in circumstances where they refuse to attend (or return to) work because they believe it is unsafe to do so.

The Law:

The law protects employees from dismissal or poor treatment where:

• they leave (or propose to leave) their workplace in ‘circumstances of danger’; or
• they refuse to return to their workplace whilst the danger persists; and
• the employee reasonably believes the danger to be both serious and imminent; and
• the employee could not reasonably have been expected to avert the danger.

The law also protects employees from dismissal or poor treatment, where, in circumstances of danger that the employee reasonably believes to be serious and imminent, they took or proposed to take appropriate steps to protect themselves or other persons from danger. This section could potentially be relied upon when a ‘healthy’ employee refuses to attend or return to work because they are concerned for the health and safety of a vulnerable person that lives in their household.

Where an employee is dismissed because of one of the above reasons, an employee can bring a claim in the Employment Tribunal for “automatically unfair dismissal”. Any poor treatment for one of the above reasons which falls short of dismissal (which could include subjecting an employee to disciplinary proceedings) can be brought in the Employment Tribunal as a claim for “detriment”.

Unlike claims for “ordinary” unfair dismissal, which have a two-year qualifying service requirement, claims for automatically unfair dismissal and detriment are not subject to an employee having any minimum length of service.

Matters an employer should take into account

In order to avoid claims for automatically unfair dismissal and/or detriment, it is very important that an employer properly understands the employee’s reasoning for refusing to attend or return to work. Having this understanding will help to inform the employer of the risk of taking steps to discipline or dismiss an employee that is refusing to attend work.

An employer ought to consider each case or refusal to attend (or return to work) on its own merits.

The following issues need to be considered in each case:

• Whether, the risk of catching Coronavirus amounts to a “serious and imminent danger”
• This is likely to depend upon a number of factors based upon the nature of the workplace including:

–      Whether effective social distancing at work is possible. For example, it is much easier to practice social distancing in an office environment than a care home setting;

–      Whether the workplace exposes employees to people at a higher risk of having the virus. For example, a receptionist at a doctors’ surgery is more likely to be exposed to people that have the virus than someone that works in a call centre;

–      The measures the employer has put into place in order to stop the spread of the virus. This could include regular deep cleaning or providing employees with appropriate PPE and/or hand sanitiser; and

–      Whether any employees in the workplace have recently contracted Coronavirus.

Another very important point for an employer to consider is whether the employee themselves, or a member of their household is at particular risk of serious illness from Coronavirus due a health condition. Where an employee (or household member) is in a higher risk group, they are more likely to be protected by the law if they refuse to attend or return to work due to safety concerns. Employees that have underlying medical conditions may also have additional protection under disability discrimination law.

Employers also have to be very mindful that the employee only has to “reasonably believe” that the danger is serious or imminent. Therefore, the employee’s belief as to the level of risk (provided that belief is reasonably held) is something that an employer ought to take into account when determining whether there is serious or imminent danger.

How can an employee show that they could “not reasonably have been expected to avert the danger”?

Usually before taking a decision not to attend or return to a place of work, an employee would be expected to raise their concerns with their employer. Raising concerns is likely to give the employer the opportunity to put any additional measures or protections into place that are necessary to avert the danger.

Even if an employer has not first raised their concerns to their employer, an employer should almost always explore the reason for non-attendance with the employee before making a decision to take disciplinary action.

Steps employers and employees can take

Clear and open lines of communication between employer and employee are key in these cases. Employers should be mindful that each employee has a unique set of personal circumstances and should be prepared to be adopt a flexible approach when this is necessary and possible. For example, where an employee is particularly worried about travelling on public transport at peak times, it might be possible to agree different start and finish times to allow the employee to either get a lift into work or to travel on public transport when it is less busy.

In order to avoid claims being brought for automatically unfair dismissal or detriment, it is very important that an employer takes into account a wide range of factors before taking a decision to discipline or dismiss an employee. Employers should be aware that compensation for automatically unfair dismissal and detriment claims is uncapped. Therefore, there are potentially very severe financial consequences for employers that get it wrong.

We would recommend that specialist legal advice is taken in any situation where an employer is considering disciplining or dismissing an employee in these circumstances.

Please note this blog should only be considered as guidance and should not be taken as specific legal advice.

For further advice on this topic you can contact Clare Moore at [email protected] or on 0114 218 4000.