COVID-19 employment update: Employees forced to attend unsafe workplaces – Use our free Coronavirus Rights App here

Coronavirus Employee Rights App

Has your employment situation been negatively affected by the Coronavirus pandemic? Our free app will ask you a few specific questions regarding your situation and will then provide you with up to date legal advice

Legal approach

This app deals with issues between you and your employer that have arisen because of the coronavirus pandemic. Solutions to these issues can often be reached amicably – which is always to be preferred – but may include the threat of legal action against your employer, or as a last resort, actual legal action.  Here we outline the legal approach taken in this app to the coronavirus employment issues confronting employees.   

Our goal with the app is to guide you towards a fair and prompt employment solution.  To do this we need accurate information about your case to inform the solution we offer you once you have run and completed the app.  Our approach draws on information published by the government, recent legislation (Health Protection (Coronavirus) Regulations 2020),  and particularly the Employment Rights Act 1996, section number 44. 

That section talks about the rights of employees to be provided with a working environment which meets current health and safety legislation and protects employees from any shortcomings in that provision.  It also gives employees 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 says that employees should not be punished – the exact words used are ‘‘subjected to any detriment’ as you can see below – for taking such steps. 

 

Section 44 of the Employment Rights Act 1996 states:

“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.” 

The definition of ‘danger’ includes coronavirus. 

 

Detriments (punishments or penalties)  

Mostly the detriments currently being experienced by employees have to do with their employers withholding some or all of their pay. Sometimes employers are treating employees unfairly in other ways as well, like not allowing them to work from home when the work could be done from home, and the employee also has the necessary equipment and space to do so.  

The groups of employees being subjected to pay or salary detriments and that we are coming across most often, include the following:

1. Employees not being paid or only paid SSP

This includes employees being sent home without any pay, or opting to stay at home and not paid, or only being paid statutory sick pay. These employees are not themselves sick, although they may be vulnerable to catching covid-19 because of their age or medical condition, or there may be someone in their household who is vulnerable. 

2. Employees who are being ‘furloughed’ at 80% of their salary or asked to take a pay cut

(a)  The government’s furlough scheme:

This group includes those who are being placed on the government Coronavirus Job Retention Scheme under which the government pays the employer 80% of the employee’s salary up to £2500 per month.  It’s often called the ‘furlough scheme’, or ‘furlough leave scheme’’, the term ‘furlough’ meaning laying someone off temporarily from work.  

Under this, the employer decides who is going to be put on the scheme and whether or not to top up the 80% from the government to 100% of the employee’s usual monthly salary (again, within the £2,500 per month limit.)  The employee stays at home and is not permitted to do any work for their employer during their furlough leave. (see our article: Coronavirus Job Retention Scheme, aka furlough leave.)

No employee should be forced to go on the government scheme, but in practice there may be no other option short of redundancy, so going on the scheme is in those circumstances a detriment.  The employee has a right to resign in this situation and to sue the employer for constructive dismissal, but in practice this is unlikely to happen often, if at all, in the current environment..  An alternative option would be for the employer to reach an amicable financial settlement with their employer in the form of an exit package or settlement agreement.

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

Some employers have had reduced demand for their products or services but sufficient to be able to keep paying their employees at a reduced rate of pay.  Again, if the employee wants to remain in employment, they in effect have no choice in the matter. Their employer has legally breached their employment contract and the employee again has 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

(b) Redundancy:

Redundancy situations are complex both legally and in terms of the procedures and practices that have to be followed in order for the redundancy to be considered as fair. 

Because of this complexity, our app only deals with redundancy where it can be shown that an employee has been made redundant because they decided to self isolate from coronavirus and not to attend their place of work. In such a case, the employee may have a  claim for unfair dismissal.

Monaco Solicitors can of course help you if you are facing redundancy because of lack of work caused as a result of the coronavirus.  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.  See also our Redundancy Guide and get in touch if you think your redundancy procedure is unfair.

When does the workplace pose a ‘serious and imminent’ health and safety threat or danger to the employee?

What all the above employee situations share in common is that the employees believe 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 are self-isolating. 

They may or may not be able or permitted by their employer to carry out their work from home.  The employer says there is work to be done at the workplace and doesn’t agree that the workplace is a danger or threat to their employees’ health and safety.  

The point here is that,under section 44 of the Employment Rights Act and the judgements passed in various court cases where health and safety at work has been an issue, what really matters is not what the employer thinks, but whether the employee believes that the workplace is unsafe and is 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 the workplace whilst the threat of coronavirus remains imminent there.  Employment law expert opinion is  that such steps are appropriate in the circumstances. 

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’s understandable that anyone else – even if they considered themselves to be well-informed – would be forgiven for relying on information available from the media.  It would be very difficult to prove that the employee 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: An employee’s knowledge 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. 

Legally, it is not unreasonable of an employee to think that the workplace might be a source of imminent danger to their health and safety if they were forced to attend.  

The steps that any employee took to remove themselves from the workplace in such circumstances are also not unreasonable. 

All in all the law is on the side of the employee and it is probable that they would have a case against their employer in an employment tribunal, although that is probably not the best course of action to take in the current situation.

However, 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 were required to balance their employment needs with your health and safety ones. Alternatively, you would have a good basis to argue for compensation and an exit settlement agreement to bring your current employment to an end.

 

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