Unfair dismissal, pay cuts and bullying due to coronavirus health & safety at work

Have you at any time refused to attend your workplace because you thought it unsafe due to coronavirus risks? If you have refused to attend, and then been unfairly dismissed, had a pay cut, been bullied, or suffered other kinds of ill treatment by your employer because of your refusal, then this article is for you.

 

What are your coronavirus 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 a 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 of 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 of getting coronavirus at work?

There are various reasons why you may have genuine fears about your safety in the workplace due to coronavirus.  In our experience the main reasons are:

  • 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 of 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) needed but none or insufficient available (eg in jobs that involve close contact with people who have not been tested for coronavirus)

What does being vulnerable or having underlying health conditions mean?

Employees who are categorized as ‘vulnerable’ to coronavirus or who have vulnerable members in their households have understandable concerns about attending work.

If you or a member of your household are vulnerable, then that means that you are at higher risk of the virus affecting you particularly badly, should you contract 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.  For the purposes of this article, the main ones are as follows:

Those who are at ‘moderate risk’ from coronavirus infection

including individuals who:

  • are 70 or older
  • are pregnant
  • have a lung condition that’s not severe (eg asthma, COPD, emphysema or bronchitis)
  • have diabetes, liver, heart or chronic kidney disease 
  • are very obese (a BMI of 40 or above)
  • have a condition affecting the brain or nerves (such as Parkinson’s disease, motor neurone disease, multiple sclerosis or cerebral palsy)

People at high risk, or clinically ‘extremely vulnerable’ to coronavirus

including individuals who:

  • have had an organ transplant
  • are having chemotherapy, radiotherapy or other cancer treatments
  • have a serious lung or heart condition
  • are taking medicine that makes them much more likely to get infections (such as high doses of steroids or immunosuppressant medicine)

 

If you are in this category, you will have been told (by the NHS) that you may not attend the workplace, and that you are subject to a range of other restrictions, commonly called ‘shielding’.

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 to coronavirus?

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. 

 

Were you refused furlough because you thought it was unsafe to attend work?

In the first few months of the pandemic, we at Monaco Solicitors discouraged any form of legal action against employers in response to their ill treatment of employees.  Instead we encouraged you to try to persuade your employer to place you on the government’s coronavirus furlough scheme.

However, if your employer consistently refused to put you on the furlough scheme, and you suffered a pay cut or even no pay as a result, then you need to review what other options may be available to you as the scheme closed to new entrants  on 10th June 2020.

Here are some ways in which the law protects your rights in such circumstances and which you could initially use as leverage to negotiate with your employer for a fair outcome. That outcome may include reinstatement to your former role on full or (agreed) reduced salary; leaving your employment with a fair exit payment and settlement agreement, or – as a last resort – issuing a tribunal claim:

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 because of covid-19 and we will devote more space to it later.

Disability discrimination

Under sections 20 & 21 of the Equality Act 2010, if you have an underlying health condition, you might have a claim for disability discrimination if your employer refused to offer you furlough leave. A disability is defined as ‘a physical or mental impairment that has a substantial and long-term [12 months or more] negative effect on your ability to do normal daily activities.’ (Source: gov.uk website.)

Age discrimination

Under section 19 of the Equality Act 2010, if you are an older person, you could have a claim for indirect age discrimination if your employer refused you entry to the furlough scheme.

Can you be dismissed for self-isolating and not coming into work?

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 so 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. So even if you are completely healthy and so is everyone in your household, then it may be illegal for your employer to dismiss you for self-isolating. Your employer might be allowed to discipline you, 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.

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 work place which you need to demonstrate is risky.

In any claim against your employer you would need to show that you self-isolated because you believed there was a danger to yourself or others from covid-19, and that was the reason why your employer dismissed you.

There are employment tribunal cases on 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 £88,519, or 52 weeks gross salary, whichever is the lower (from April 2020).

See also our articles on unfair dismissal and how much you should get in your settlement agreement for further details, and for practical advice on being unfairly dismissed. Again, these are still relevant, even though they don’t specifically focus on coronavirus / covid-19 situations.

See our article on Unfair Dismissal Settlements for a (non-covid-19) overview

Unfair treatment for not attending a coronavirus 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.”

There can be no doubt that coronavirus presents a ‘serious and imminent’ danger. Indeed, the most recent piece of legislation on the matter – the Health Protection (Coronavirus) Regulations 2020, at Regulation 3(1) – confirms that:

“the incidence or 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 a covid-19 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.

The 3 groups of employees who are being or have been subjected to pay or salary detriments and that we have come across most often, include the following:

1. Employees not being paid or only paid SSP

This includes you if you were sent home without any pay, or opted to stay at home and not be paid, or only been paid statutory sick pay. You were not yourself sick, although you may have been vulnerable to catching covid-19 because of your age or medical condition (see earlier), or there may have been someone vulnerable in your household.

2. Employees furloughed with a % of their wage/salary or asked to take a pay cut

(a) People furloughed:

This group includes you if you were placed on the government Coronavirus Job Retention Scheme mentioned earlier and often just called the ‘furlough scheme’.

It was up to the employer to decide who to put on this scheme and whether or not to top up the percentage paid by the government to 100% of your usual monthly wage/salary.

(The government contribution in 2020 being 80% from March to August; 70% in September and 60% in October, with a monthly cap. See our article on coronavirus furlough leave for further details.)

No employee should have been bullied or forced to go on the government scheme, but in practice there may have been no other option short of redundancy.  Being put on the scheme under duress like this could also be counted as a ‘detriment’.

You had a right to resign in this kind of situation and to sue your employer for constructive dismissal.  Although it is unlikely that many people exercised this right in the early months of the pandemic, it may be a last resort for you now that the furlough scheme has closed to new entrants.

An alternative – and a preferable – option would be for you to reach an amicable financial settlement with your employer in the form of an exit package or settlement agreement.

(b) Employees retained only if they accept a pay cut:

Some employers have had reduced demand for their products or services but had sufficient income to be able to keep paying you at a reduced rate of pay. Again, if you want or wanted to remain in employment, you in effect have had no choice but to accept.

Your employer has breached your employment contract in this scenario and you again have a right to resign and sue for constructive dismissal, or to ask for a settlement agreement as for (a) above.

3. Employees being dismissed or made redundant:

(a) Dismissals:

Dismissals here refer to employees who are being or have been dismissed because they refuse/d to attend work in the workplace on the grounds that it was dangerous to their health and safety (as discussed above in the section on dismissals).

(b) Redundancy:

If you have been made redundant because you decided to self isolate from coronavirus and not to attend your workplace, you may have a claim for ‘automatic unfair dismissal’, as also mentioned earlier in the section on dismissals.

You may of course have been made redundant or be facing redundancy because of lack of work caused as a result of the coronavirus. Neither s44 nor s100 of the Employment Rights Act 1996 can help you here. However, if the way in which your redundancy has been carried out is unfair, then you may have a case for what’s called ‘procedurally unfair dismissal’.

There is a template letter on our website called ‘Letter from employee dismissed/made redundant due to lack of work’ which you can adapt to suit your own situation and send to your employer in an attempt to get a better financial settlement than just statutory redundancy pay.

See also our Redundancy guide and try out our Redundancy letter builder which helps you create a letter to your employer about your redundancy case – whether you are still employed, or recently made redundant. If you think you need legal representation, then get in touch to see if we can help.

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) and so is self-isolating.

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 coronavirus 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 are taking to protect themselves in our present covid circumstances are to remove themselves from the workplace, and to remain away from it whilst the threat of coronavirus remains imminent there. As specialist employment lawyers, Monaco Solicitors would argue that such steps are appropriate.

 

Your knowledge about coronavirus 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 (coronavirus in our case) and health and safety factors in the workplace at the time.

Given that even medical experts don’t fully understand coronavirus, it would be very difficult for an employer to prove that their employees should have been better informed about the virus, or about whether conditions in the workplace were adequate to protect them 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

Moreoever, 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. As mentioned earlier, however, negotiation is always preferable, not least because these types of cases have not yet come to court so we don’t know 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 and agree 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 make them aware by forwarding them a copy of this article, or else by using our Coronavirus Employment Rights App which provides you with template letters for that purpose.

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

 

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 covid-19 threat; if you have failed to resolve the problem or are unhappy with the outcome, then get in touch with us at Monaco Solicitors to see if we can help.  It costs nothing to ask!

We are established employment law solicitors specialising only in working with employees (not emloyers).  You can rest assured that you will be in the hands of experts who have years of experience of winning cases for employees, yet who understand where you are coming from and the need for a friendly, jargon-free approach.

 

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