Employers, employees and their advisers will all need to form judgements about when and how individuals gain protection under the Employment Right Act 1996 for taking protected action to protect their own, or others’ safety.
Employees who are still required to attend their workplace during the coronavirus pandemic may have significant concerns over doing so, both in terms of the risks to their health and safety and that of the other members of their household. In some cases, an employee’s concerns may become so serious that they either leave their workplace or refuse to return to it. We have set down here some of the circumstances in which it may be permissible for an employee to do this, and what legal issues could arise.
Below are nine key points that employers, employees and their advisors need to know about health and safety dismissals and detriments in light of Covid 19.
- It is the employee’s belief that matters, not the employer’s opinion.
- Danger is widely interpreted and the actions of other employees count.
- Potential danger is not “imminent.”
- Employees can take positive steps to protect others from danger even if it hurts their employer’s business.
- The “danger” doesn’t have to be to fellow workers.
- Damages under section 44 and 100 are unlimited, subject to no qualifying service requirement and may be extensive.
- Constructive dismissal claims are likely if employers fail to deal with health and safety issues.
- The rights are individual and not collective.
- Workers may be protected as well as employees.
In our opinion, whilst the pandemic is ongoing and beyond, of paramount importance is communication between employers and employees and from an employer’s perspective documenting that communication, listening to what employees have to say and taking the necessary steps to protect them will be vital. Simple measures can mean that employees heard, feel valued and more importantly safe.
Please note – this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.
Every care is taken to ensure that the advice given in this newsletter is correct, HCHR cannot accept responsibility for the accuracy of statements made, nor the results of any actions taken by individuals after reading such.
If you have any doubts queries or concerns, you should refer to the relevant regulations and take further professional advice.