Read in PDF Version <here>. 1st May 2020
Employment Rights Acts and related Concerns
Many Employees on the frontline are being threatened and bullied to attend work, where they have very legitimate concerns about the COVID-19 risk this poses, even where employers have failed to implement adequate health and safety measures. This state of affairs is only likely to increase as the “back-to-work” roadmap is officially published and as unions bring pressure to bear in the workplace.
Directive 89/391/EEC contains general principles concerning the prevention and elimination of occupational risks & protection of safety and health in the workplace and added remedies available to employees under the Employment Rights Act 1996 (“ERA”) when they suffer s44 detriment and/or s100 dismissal due to raising Covid-19 related health and safety issues, or where they refuse to attend work etc?
The Covid-19 pandemic and the need, notwithstanding the lockdown means that many employees, post lockdown, will be expected to work in factories, supermarkets, public transport, care homes and hospitals leading to claims under sections 44 and 100 ERA 1996. Caselaw has applied a wide interpretation to the concept of ‘danger’ in sections 44 and 100 and the risk of infection is undoubtedly both serious and imminent and any requirement for an employee to work away from home even where the employer has taken health and safety measures to reduce the risk of infection at work may increase risk of infection if the employee has to use crowded public transport.
The question to be addressed, post-lockdown, will be whether health and safety measures taken by employers (including taking into account PPE and distancing) were inadequate.
ERA s44 protects employees from “suffering detriment” in the workplace “by any act, or any deliberate failure to act, by the employer on the grounds that he is exercising certain health and safety rights”.
In addition, safety officers/representatives are protected from dismissal for carrying out their functions.
s44(1)(c): States that if an employee is a employee where there is no safety representative or safety committee or where there is such as representative or committee bu it was not reasonably practicable for the employee to raise the matter by those means and the employee brought matters to his employer’s attention, by reasonable means, and they are both connected with the employee’s work and the employee reasonably believes that thee matters identified are or were harmful or potentially harmful to health and safety, then the employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer as a consequence .
s44(1)(d) Where an employee reasonably believes there to be circumstances of danger that are serious and imminent and which the employee could not reasonably have been expected to avert, then the employee can leave (or propose to leave) or refuse to return to his place of work or any dangerous part of his place of work, while the danger persists, then the employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer as a consequence;
s44(1)(e) Where an employee in circumstances of danger which the employee reasonably believed to be serious and imminent, takes (or proposes to take) appropriate steps to protect himself or other persons from the danger, then the employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer as a consequence.
Similar protections exist where s100 matters arise.
Where the provisions are breached any action or dismissal is automatically unfair.
Under section 105(3) ERA, a dismissal is also unfair if there is a redundancy and the reason why the employee was selected for dismissal was one of those set out section 100(1).
s100 Health and safety cases.
s(1) provides that an employee who is dismissed is automatically unfairly dismissed if the reason (or principal reason) for the dismissal is any of the following:
(a) the employee was designated to carry out activities in connection with preventing or reducing risks to health and safety at work and doing so;
(b) the employee was a Health and Safety at Work representative or safety committee membership either established by statute or recognised as such by the employer, and performing (or proposed to perform) any functions as such,
(c) the employee worked at a place where there was no such representative or safety committee, or it was not reasonably practicable for the employee to raise the matter by those means, and brought circumstances connected with his work to his employer’s attention, by reasonable means, which he reasonably believed were harmful or potentially harmful to health or safety,
(d)the employee reasonably believed there to be serious and imminent danger and which he could not reasonably have been expected to avert, and left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work,
(e) the employee took (or proposed to take) appropriate steps to protect himself or other persons from the danger which the employee reasonably believed to be serious and imminent.
s100 protections only arise where either a) no health and safety representative/safety committee or b) where a representative or safety committee exists, it was not reasonably practicable for the employee to raise matters through the representative/safety committee.
Article 13(2)(d) of the Directive provides that workers must “immediately inform the employer” of serious and immediate dangers to health and safety. If and in so far as there is a conflict between the Directive and section 100(1)(c) then matters must be construed compatibly with the Directive.
Industrial action is not a reasonable means of bringing health and safety concerns to the employer’s attention and although action rather than words may be a reasonable means of bringing the issue to the employer’s attention, those circumstances ‘must be exceptional’.
An employee is however not subject to a detriment where the employee took or proposed to take were so negligent that any reasonable employer would have treated them as negligent.
An employee is protected if they genuinely and reasonably believed that a workplace practice created a health and safety risk, even if that belief was mistaken.
1. Did the employee reasonably believe that there was a serious and imminent danger and did the employee take or propose to take appropriate steps to protect himself or other persons from the danger or to communicate these circumstances to their employer by appropriate means
2. If the answer to (a) is yes, was the sole or principal reason for the dismissal the fact that the employee took or proposed to take the steps in question.
NO LIMITS COMPENSATION
If an employee suffers s44 detriment or s100 dismissal, then the employee may bring an employment tribunal claim and must comply with the ACAS Early Conciliation process and also abide by strict time limits of three months from the act complained of (plus the extra time for early conciliation).
Tribunal: s44: A declaration will be made to that effect and an award of compensation can be made to the employee at a level that is just and equitable in all the circumstances (section 49(2)).
Tribunal: s100: Success will mean that automatically unfairly dismissal arise on health and safety grounds and the compensatory limits that apply to ‘normal’ unfair dismissal claims do not apply. (Further, the two-year employment qualifying period that applies to ‘normal’ unfair dismissal claims does not apply to automatic unfair dismissal claims such as the health and safety grounds.
Note: Health and safety claims may overlap with other potential claims such as asserting a statutory right (under section 104) and/or making a public interest disclosure (whistleblowing) (under Part IVA ERA 1996).
It is clear that any employee who raises health and safety concerns in an appropriate manner with their employer about the dangers of infection from Covid-19 in the workplace and is treated detrimentally as a result will have a good s44 detriment claim (i.e. threatened with disciplinary action or selection for redundancy).
Similarly, employees who take action by refusing to work in their normal workplace because of their concerns of the increased risk of contracting Covid-19 and are consequently subjected to detrimental treatment (by for example the threat of/actual disciplinary action) or dismissed as a result are also likely to have good claims under section 44 or section 100; however where the employee has reasonable grounds to believe there to be serious and imminent danger to any person and which he could not reasonably have been expected to avert, the employee will need to make appropriate adjustments.