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For a number of months now the government has been pushing the message; unless you are able to work from home you are “actively encouraged to go to work” (in England at any rate). For many this remains both easier said than done and is often quite an unattractive possibility. An unforeseen consequence of the Global Pandemic has been a rise in mental health difficulties coming from the requirement to remain indoors. The idea of returning to work whilst infection rates are on the rise, has been an understandable cause of concern for many.

What therefore are your rights, if you wish to refrain from returning to work, and on what basis are you entitled to reject a return?

As a starting point, all workers have a right to work in places where risk to their health and safety is properly controlled. This could be through a variety of means but must include (non-exhaustive), the maintenance of the place of work, the mental health of their employees, and the provision and maintenance of a safe working involvement. This obligation is imposed through both a common-law duty of care, and by the Health and Safety at Work Act 1974. The latter sets out to ensure (as far as is reasonably practicable) that all employees’ welfare is protected. Finally, there is a term implied into contracts of employment (as well as contracts for the personal performance of work and/or services) of trust and confidence (Woods v WM Car Services (Peterborough) Ltd): EAT 1981).

Under section 44(1) of the Employment Rights Act 1996 (ERA) an employee is entitled to refuse to return to work and/or take appropriate steps to protect themselves when they consider they are in circumstances of ‘danger’. This includes situations in which the employee reasonably believes themselves to be in serious and imminent ‘danger’. ‘Danger’ includes hazards caused by the behaviour of colleagues.

Should an employer fail to implement appropriate safety measures, such as the failure to create and implement an appropriate risk assessment, following the government’s guidance on “working safely during coronavirus (COVID-19)”, or provide reasonable adjustments for their workforce to continue to work in a safe and controlled manner (i.e. impose appropriate levels of social distancing/create a “covid-secure” environment) they could be said to be creating circumstances of ‘danger’. What remains unclear/untested is whether the simple fact that employees in the workplace tested positive for COVID-19 would give rise to circumstances of ‘danger.’

Each case inevitably turns on its own individual facts. However, it is likely that a tribunal will consider an employee’s refusal to attend work justifiable, if they also find that conditions of ‘danger’ existed in the relevant workplace, and that such situations posed both a serious, and imminent threat to that employee. (It is worth noting, that the protection offered by the ERA is only available to employees – those with worker and/or self-employed status will not be able to rely upon s44(1) ERA).

If an employee does refuse to return to work under s44(1) ERA 1996, and that refusal is found to be justified, the ERA provides that the employee will not be subject to any detriment as a result. This includes disciplinary action, the withholding of pay and dismissal. It could also give rise to a considerable award for damages. 

In terms of practical advice, it would not be sensible to simply ‘down tools’ and is always desirable to maintain an open level of communication with your employer. If you do therefore consider you are being coerced to work in conditions which pose a serious and imminent danger to you, it would be wise to raise your concerns directly with your employer. Should this not be successful you are able to report your concerns directly with the Healthy and Safety Executive and are encouraged to seek formal legal advice. If you believe you are being asked to work in conditions which pose a serious and imminent danger to you, or if you wish to discuss the content of this article, please contract our specialist employment law team on 0117 904 6000.