Unfair dismissal & ill-treatment due to health & safety issues at work

If you have refused to attend, and then been unfairly dismissed, had a pay cut, been bullied, or suffered other kinds of ill-treatment, then this article is for you.

What are your health and safety rights at work?

Your employer is obliged under common law and also under Section 2(1) of the Health and Safety at Work Act 1974, to “ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”.

If your employer doesn’t uphold this obligation, they can be investigated by the Health and Safety Executive and even face criminal prosecution. 

Under Sections 44(1) (d)-(e) and 100(1) (d)-(e) of the Employment Rights Act 1996, you are also entitled to leave the workplace and to refuse to return to it until any imminent danger (such a the risks of contracting coronavirus) has passed, so as to protect yourself – and possibly others too  –  from the danger. 

It is unlawful for your employer to dismiss, make redundant or otherwise subject you to any loss – such as reducing your pay, bullying you, or any other mistreatment – because you have left the workplace or refuse to attend it in the above circumstances. 

If your employer is made aware of the lack of safety in the workplace, but still does not take steps to remedy any such shortcomings, you have the right to continue not to attend until such time as your employer resolves the problems.

(See below for more detail on the practical implications of sections 44 and 100 of the Employment Rights Act.)

 

When might you feel unsafe and at risk?

There are various reasons why you may have genuine fears about your safety in the workplace, whether it’s due to coronavirus or similar health and safety issues.  In our experience, the main reasons include:

• The need for social distancing and not enough space to practise it
• Being in public-facing roles (eg cashier, receptionist) and with inadequate protection
• Inadequate cleanliness in the workplace (eg no provision for cleaning surfaces during working hours)
• Having to share equipment in such a way that it cannot be cleaned after each individual has used it
• Personal protective equipment (PPE) is needed but none or insufficient is available 

 

What does being vulnerable or having underlying health conditions mean?

If you or a member of your household are vulnerable to coronavirus, then that means that you/they are at higher risk of contracting the disease and of being badly affected by it. 

You have what’s generally referred to as an ‘underlying health condition’. 

(See the patient.info website for more detail on what an underlying health condition means from a medical viewpoint.)

So, it follows that if you or a member of your household are vulnerable, you will want to take all possible steps to avoid contracting the disease. 

The NHS website gives full lists of people recognised by the relevant UK authorities as being vulnerable.  

The legislation referred to at the beginning of this article (s44 and s100 of the Employment Rights Act 1996) protects the health and safety needs of all vulnerable employees who are afraid to attend work because they believe it to be unsafe. 

 

What about employees who are not vulnerable?

Less well publicised is the fact that the same legislation also protects your health and safety at work needs if you are not vulnerable – in other words, if you are in good health. 

You do not need to be a vulnerable employee to be given dispensation from attending work if you believe it to be unsafe there.   We will pick up on this issue again later. 

Refusing to work in an unsafe workplace

Under section 44 of the Employment Rights Act 1996, you are actually entitled to be paid 100% of your normal salary if you stay at home due to an unsafe workplace, and you can’t lawfully be dismissed for doing so.

What’s more, there is no 2-year minimum employment requirement (as there is with most other kinds of unfair dismissal claims) for you to have these rights.

This is an important piece of legislation for employees who have been unfairly treated by their employers – whether because of covid-19 or any other relevant reason – and we will come back to it again later.

 

Can you be dismissed for not attending an unsafe workplace?

Section 100 of the Employment Rights Act 1996 relates to health and safety dismissals. Although this legislation was enacted over twenty years ago, it has not been superceded since then and still applies.

Section 100 does not give you an absolute right to withdraw your labour if you think your workplace is unsafe. However, if you are dismissed for self-isolating due to coronavirus then this could amount to automatically unfair dismissal under the Act.

As mentioned earlier, this applies whether or not you or someone in your household are vulnerable.

If you’re not vulnerable and are in good health, your employer might be allowed to discipline you in the circumstances, but not to dismiss you.

S100 of the Employment Rights Act 1996, ss (1) d & e, actually states:

‘(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he 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, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.’

As with s 44 of the same Act, there is no minimum length of service (see above), so even if you’ve been employed for under 2 years, dismissal in these circumstances can still be regarded as unfair.

What can you do if you are dismissed or threatened with dismissal?

At a practical level, try to take some photos of your work or other evidence, eg. if there are people working within 2 metres of each other. It is the health and safety of the workplace which you need to demonstrate is risky.

In any claim, you would need to show that you were absent from the workplace because you believed there was a danger to yourself or others from a disease like Coronavirus or other threat to your health and safety.

You would also have to have evidence to support your claim that this was the reason why your employer dismissed you.

There are employment tribunal cases in this area of law. For example Harvest Press Ltd v McCaffrey 1999 ILRL 778 and Teasdale v John Walker T/a Blaydon Packaging (12.4.99 Case No.2505103/98).

Although both these cases are old and of course pre-date the covid-19 crisis, they are still relevant so far as the law and health and safety dismissals generally are concerned.

Note that the maximum amount that you can be awarded as compensation for most claims of unfair dismissal is £93,878, or 52 weeks gross salary, whichever is lower (from 6 April 2022).

See also our articles on unfair dismissal and compensation and how much you should get in your settlement agreement for further details and practical advice on being unfairly dismissed.

Unfair treatment for not attending an unsafe workplace

As briefly mentioned earlier, the Employment Rights Act 1996, section 44 is about the rights of employees to be provided with a safe working environment.

It gives them the right to take reasonable steps to protect themselves from what they believe is serious danger or threats to their health and safety.

The Act essentially says that employees should not be punished or suffer any losses (it uses the phrase ‘‘subjected to any detriment’) for taking such steps. Here’s the exact wording:

“44. Health and safety cases
(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he 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, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”

Coronavirus has undoubtedly presented a ‘serious and imminent danger’ as confirmed by the most recent piece of legislation – the Health Protection (Coronavirus) Regulations 2020, at Regulation 3(1) – which states that:

“the incidence of transmission of coronavirus constitutes a serious and imminent threat to public health.”

 

Not being paid and other unfair treatment for failing to attend an unsafe workplace

Mostly the ‘detriments’ experienced by employees who fail to attend an unsafe workplace have to do with employers withholding some or all of their pay.

You do not have to accept any reduction in pay, because you have taken protected action under the Employment Rights Act 1996. You are entitled to full pay at this time under section 44.

Therefore if your employer has withheld your pay, then you should ask them to reimburse you with back-pay for the income lost so far, and – if appropriate – to reinstate you on the payroll.

Sometimes employers have been making employees suffer in other ways as well, like bullying them and not allowing them to work from home when the work could have been done from home.

When is a workplace a serious and imminent health and safety threat?

What all the situations mentioned so far share in common is that the employee believes that their workplace is a danger and a ‘serious and imminent threat’ to their health and safety (section 44(1e) of the Employment Rights Act 1996).

As an employee, you may or may not be able or permitted by your employer to carry out your work from home.

Your employer may say there is work to be done at the workplace and doesn’t agree that the workplace is a danger or threat to your health and safety.

What matters is what the employee thinks about workplace safety

However, under section 44 of the Employment Rights Act and related judgements, what really matters is not what your employer thinks, but whether you believe that the workplace is unsafe and so are taking appropriate steps in the circumstances.

The steps that employees have been taking to protect themselves in covid circumstances have been to remove themselves from the workplace, and to remain away from it whilst the threat remained.

As specialist employment lawyers, Monaco Solicitors would argue that such steps are appropriate.

What you know about diseases or health and safety at work is not the key issue

This view also takes account of the employee’s knowledge about the nature of the threat (eg coronavirus) and health and safety factors in the workplace at the time.

Even medical experts don’t fully understand diseases like coronavirus, so it would be very difficult for an employer to prove that their employee should have been better informed about it.

Equally, it would be difficult for them to prove whether or not conditions in the workplace were adequate to protect employees against the virus.

So, in summary: your knowledge as an employee may not be very extensive about the nature of the threat and related health and safety issues in the workplace, but neither is anyone else’s.

 

The law is on your side

From a legal point of view, it is not unreasonable for you to think that the workplace might be a source of imminent danger to your health and safety if you were forced to attend.

So it follows that it would not be unreasonable if you refused to attend the workplace in such circumstances.

All in all, the law is on your side and it is probable that you would have a case against your employer in an employment tribunal.

Negotiating a settlement vs an unfair dismissal tribunal case

In our view, negotiation is always preferable.

This is especially true if your case is related to Coronavirus, as there haven’t yet been enough tribunal cases to tell us how the judiciary will deal with them.

If your employer is made aware of the main points of the law, they may be more inclined to re-think their approach.

They may also be more willing to pay you fully/fairly or to take whatever other steps are necessary to balance their employment needs with your health and safety ones.

You can help make them more aware of the relevant issues by forwarding them a copy of this article.

Alternatively, you would have a good basis to argue for compensation and end your employment by negotiating an exit settlement agreement.

Next steps

If you think you have been unfairly treated by your employer because you refused to attend a workplace that you thought was a health and/or safety threat, then get in touch with us at Monaco Solicitors to see if we can help.

Monaco Solicitors are well-established employment law solicitors specialising only in working with employees (not employers).

You will be in the hands of experts who have years of experience in winning cases for employees, yet who understand where you are coming from and the need for a friendly, jargon-free approach.

Contact us:

• Via this link,
• By phone on 020 7717 5259
• By email:  communications@monacosolicitors.co.uk