On Sunday 10 May 2020, the Government is expected to announce some easing to the current lockdown measures, which could include some professions being permitted to return to work.
However, what happens if your staff refuse to return to work, or demand to continue to work from home because of their fear of contracting Covid-19 by returning to the workplace?
Usually, where an employee refuses to work they can be disciplined but this is an unusual situation and the rules and processes are not entirely clear.
The Employment Rights Act gives employees protection from dismissal or detrimental treatment if they refuse to attend work, or if they take appropriate steps to protect themselves, in circumstances of ‘danger’ which the employee reasonably believes is serious and imminent and which they could not be reasonably expected to avert.
One of the key questions when confronted with this scenario will be whether the current pandemic meets the definition of “danger”. This is new territory and so as of yet, there’s no case law on this point but it is open to a tribunal to conclude that the Covid-19 pandemic constitutes a ‘danger’ in this regard.
Further key questions, however, are whether the employee reasonably believes the danger to be serious and imminent, and whether they can reasonably be expected to take steps to avert the danger. If an employer puts adequate safeguards in place and adheres to government guidance, it seems likely that employees will have difficult hurdles to overcome if they try to bring such claims. The emergence of case law in this regard will more likely come from those working closely with the public and those on the front line who have more of a risk of coming into contact with the virus and feel that adequate safeguards were not put in place, such as appropriate PPE.
It is likely that there will be a stronger burden on employers to ensure adequate health and safety measures when we return to work in accordance with government guidelines. Employers should be mindful of the protections afforded to employees under the Employment Rights Act, before making any decisions on how to deal with concerned employees who are refusing to go back to work.