When the government’s roadmap hit destination non-essential retail and (outdoor) hospitality last month, the numbers of people savouring a little more freedom might have suggested we were out of the Covid woods. Clearly that isn’t yet the case, but assuming that Lockdown 3.0 continues to be cautiously lifted and more workplaces begin to open up, serious questions remain:
To what extent can an employer require an employee to attend at the workplace, where they are reluctant to do so due to a Covid related reason? How should an employer approach these issues? The answers are far from simple.
Much will depend on the employee’s reasons for being unwilling to attend. Where the refusal is based on health concerns an employer will need to tread carefully.
Dismissal or the disciplining of staff (including the withholding of pay) where a refusal to attend work is based on health and safety concerns, carries a risk of a successful Tribunal claim under s100 (dismissal) and s44 (detriment) Employment Rights Act. Those provisions protect employees from dismissal or detriment on the grounds of a refusal to attend at work, where the employee has a reasonable belief that it would put them (or others) in serious and imminent danger, which they cannot reasonably be expected to avert.
The protection applies not only where an employee believes there is serious and imminent danger to their own health, but also where they believe that such danger exists in relation to others. An example of this might be where the employee is concerned about the risk of bringing Covid into their own household.
The key issue is whether the employee’s belief about the level of danger is, in fact, reasonable. There are two things that may significantly assist an employer in showing that the employee’s belief is not reasonable.
The first is the vaccination programme. If, as more data emerges, we have a situation where infection rates drop to the levels they were last summer, it will be difficult for many employees to show that their fears of serious and imminent danger are reasonable.
Adjustments and communication
The second is the steps that an employer implements to make sure the workplace is as safe as it can possibly be and, just as importantly, the effective communication of those steps to all staff. The more that an employer does to make the workplace safe, the less likely the employee is going to be able to show a genuine and reasonable fear for their safety.
The employee’s own health may be very relevant. In some circumstances, an employee with a suppressed immune system may be put in serious and imminent danger, where those without such health conditions are not. It may well be that, as infection rates fall, we will get to the stage where only those with existing health conditions will be able to argue that there is a risk of serious and imminent danger if they are required to attend the workplace.
Particular care should be taken where an employee is disabled, in a vulnerable category or has a relative in either of those positions, or where the employee has some other protected characteristic. That is especially so where the employee is unwilling to attend at work or be vaccinated, perhaps because of health issues, pregnancy, or on the basis of cultural or religious beliefs.
With disabled employees, any requirement (applied to all staff) to continue to attend work in a pandemic could be indirectly discriminatory against those whose disability makes it more difficult or risky to attend. The important thing here is that an employer can justify its requirement that employees attend the workplace. This will involve a focus on the business or operational reasons for the request. An employer will also need to consider what reasonable adjustments it should make to facilitate a disabled employee’s request to work from home in a pandemic.
Where objection is based on other non-health related concerns such as child care, the risk in relation to employment law liabilities is much lower. The primary risk is an indirect sex discrimination claim from female staff. Again, the key is that an employer can justify its requirement that employees attend at the workplace.
One area of controversy is whether an employer can require that an employee be vaccinated as a condition of being allowed to work. Again, it would be wise to tread carefully. There is a clear risk of discrimination claims where an employee’s objection is based on health issues (perhaps pregnancy) or religious or cultural reasons.
Approaching the issue of returning to the workplace
• Consult with staff – employees are more likely to run with something they have been involved in deciding
• Try to secure agreement about a return
• Be willing to be flexible – look for alternative options
• Be sensitive in the case of pre-existing health conditions
• Be very clear about the rationale for requiring a return to the workplace
Simon Bellm is an Employment partner at DMH Stallard. He can be contacted on 01293 55 8511 or by email at firstname.lastname@example.org