How do you deal with staff refusing to return to the workplace? When will an employee be right to refuse to return? This has been an emerging issue since early 2020 and only now are Tribunal cases being heard and determined. We now have valuable insight into the Tribunal’s approach to COVID-19 related cases – and the newly discovered s.100 defence.
Under s.100 of the Employment Rights Act 1996, dismissals will be deemed to be automatically unfair if the sole or principal reason for the dismissal was that either (1)(d) the employee refused to return due to a serious and imminent danger or (1)(e) the employee took appropriate steps to protect themselves or others from that danger, and they held reasonable belief that it was serious and imminent.
So what does this mean in practice?
Employees could refuse to return to work if they have a reasonable belief that there is a “serious and imminent danger”.
The Tribunals approach to date for cases that arose in Lockdown 1 is that, at that time, COVID-19 could reasonably be deemed a ‘serious and imminent danger’, for the following reasons:
- 14 Feb 2020 – the Department of Health gave notice in The Gazette that COVID-19 presented a “serious and imminent threat”;
- 16 march 2020 - PM Boris Johnson stated that non-essential contact and travel should cease;
- 23 march 2020- we went into national lockdown, with limited reasons to leave home, e.g. only if you were a key worker and it was necessary; and
- At that time, there was very little information in respect of transmission and of course, there was no vaccine.
Therefore, most of the time, particularly as seen through the lens of the first lockdown, the employee is able to prove that they believed COVID to be a serious and imminent danger and an employee could reasonably refuse to return to the workplace. If dismissed as a result, this would be deemed automatically unfair.
What could be deemed to be appropriate steps?
If an employer dismissed an employee due to them taking ‘appropriate steps’ to protect themselves and others, this could be deemed automatically unfair dismissal.
I can advise employers and employees, on an individual, case-by-case basis, what could amount to appropriate steps. I can discuss requesting furlough, asking for PPE, refusing to attend the premises of someone that is self-isolating, and much more.
What is the significance of this defence?
The significance of a dismissal being found to be automatically unfair, is that compensation is uncapped and the employee does not require two years’ service to claim.
The position may change in respect of cases arising in the second lockdown and even more so, cases that are arising now. The emergence of more information and the vaccine is likely to stop COVID from being reasonably considered a ‘serious and imminent danger’ but again, this would be determined on a case-by-case basis.
Employers should be aware that workplace cleanliness is still really important, and a lack of PPE or other safety measures could swing the balance in favour of the employee in such a case.
Something for both employers and employees to bear in mind, is that it may be more difficult for someone who has declined vaccine to submit that they reasonably believed there was serious and imminent danger (except where they are exempt from having the vaccine due to medical reasons).