Can employees refuse to work due to Covid?
With winter approaching and the coronavirus sadly showing little signs of packing up and leaving any time soon, it is understandable that anxieties regarding the pandemic are also on the increase.
Here at Avensure our experts are being asked more and more about employees who are refusing to return to work due to concerns about catching the virus. In this article we examine whether it is reasonable to refuse to attend work and what employers can do when faced with such refusal.
What is the legal position?
Unsurprisingly, the legal position regarding a pandemic is not straight forward, mainly owing to a lack of case law. So how does the existing legislation stack up?
We look to the Employment Rights Act 1996, specifically the protection afforded to those making protected disclosures (also known as whistleblowing) and those citing concerns in respect of Health & Safety at work.
As far as Whistleblower protection is concerned, this is a very detailed area of law and there are many definitions of what constitutes a protected disclosure in terms of how the disclosure is made and so on.
The kind of disclosures which relte to the current pandemic and specifically refusing to work, will be where an employee reasonably believes that the ‘health and safety of any individual is being, has been or is likely to be endangered’. This will most likely arise when someone believes that their work premises are not covid-secure.
Setting aside the fact that concerns of this nature will be more legitimate than others, it is automatically unfair to terminate someone’s employment is because they have made a ‘protected disclosure’. It is also unlawful to subject someone to any detriment on the grounds that they have made a protected disclosure.
For example, if an employee were to disclose concerns (whether verbally or in writing, either to the employer or the HSE) about the safety of their work premises and then had their employment terminated, if the sole reason for the termination of their employment was because of their protected disclosure, this will constitute an automatic unfair dismissal. Remember– there is no qualifying service for a claim for automatic unfair dismissal and the awards are uncapped- it will be costly. See our previous article on automatic unfair dismissals here.
Likewise, ‘a detriment’ may be that following a disclosure the employee has their pay slashed or is placed on the Job Support Scheme but no-one else in the company is. Again, this will likely be a breach of the protection afforded to whistleblowers.
Health and Safety
This concerns employee protection from dismissal, or suffering a detriment, for refusing to work or leaving their place of work due to perceiving ‘serious and imminent danger’.
This will have clear implications regarding the pandemic because the virus isn’t going anywhere anytime soon and whilst employers can take all the necessary steps to make the premises covid-secure, they can’t reasonably eliminate the risk 100%.
For H&S information please see our article and consult our H&S experts here.
So, in the event employees begin to down tools or refuse to work, they are protected from being dismissed or suffering a detriment, so what does this mean in practice? Does the mere existence of the coronavirus mean employees are legitimately able to refuse to work?
Not necessarily but again these are unprecedented times and existing legislation doesn’t refer directly to the affect of a global pandemic.
It is how the employer deals with circumstances such as these that will determine whether they are able to stand a good chance of defending themselves in the event of a claim.
For example, if someone says, ‘it’s not safe to work’ and the immediate response is ‘you’re fired!’ you’ve got problems straight away because the perception of imminent danger and raising their concerns with the employer is likely to be enough to constitute a protected disclosure AND protection from being dismissed for raising H&S concerns.
Instead it is important to identify the problem and take all necessary advice from a H&S perspective to ensure that you have done everything possible to remove the identified risk.
If an employee is still adamant they are not returning to work, or refuse to carry out certain aspects of their work, then our experts can explore with you the best course of action. You may be advised to seek medical advice from the employee’s GP if they are refusing on medical grounds or there may be scope for formal disciplinary action. The key is not to act on impulse.
What about pay? If an employee refuses to work I would ordinarily suspend their pay but if they cite concerns over their safety am I subjecting them to a detriment?
Technically yes you are.
That said, there is no standard answer here, again owing to a lack of case law. On the one hand by withdrawing their labour the employee is not ‘ready and willing to work’ which is usually a must for them to argue they are entitled to pay. On the other hand, in staying away from work due to perceiving their health is at risk means they can’t suffer a detriment, this suggests they should be paid.
If every employee could legitimately use the mere existence of covid-19 as a means of staying away from work and on full pay, businesses would not survive.
Therefore, assuming you have exhausted all possible alternatives with the employee, such as working from home where possible, getting a lift to work where public transport is the concern, removing any identified risks and so on, you can look at them taking a period of annual leave if any is owed to them.
Failing that, and when their leave runs out, you are faced with the employee remaining away from work either with pay (not ideal) or without pay. Suspending payment to any member of staff always carries legal risk regardless of the circumstances and should only ever be a last resort. It’s vital that you seek advice from our experts.
REMEMBER– you have additional responsibilities to those with long-term health problems who are likely to be classed as having a disability under the Equality Act, this includes making reasonable adjustments.
In summary, if faced with the scenario of an employee refusing to work due to concerns over covid-19:
DO establish the employee specific concerns in full
DO seek H&S advice regarding risk assessments and any steps necessary to remove any identified risks
DO contact our legal experts who will explain your options with advice tailored to suit the individual circumstances.
DO NOT act in haste by terminating their employment or varying their terms and conditions which may cause them a detriment.
Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0330 100 8704.