Prior to the coronavirus pandemic, employment disputes in which individuals refused to work because of danger were relatively rarely seen by employment tribunals.
The pandemic is likely to change this. The health and safety of employees has suddenly become a widespread and complex problem. For as long as the virus remains prevalent, the workplace is potentially an environment which poses serious danger for employees.
Automatic Unfair Dismissal
This unprecedented era is likely to see an increase in automatic unfair dismissal claims arising from health and safety matters.
All employers have a duty to provide a safe place of work and employees are protected by law if they take certain actions to protect themselves from dangers in the workplace.
Employees are protected if they reasonably believe that they are in serious and imminent danger and they take appropriate steps to protect themselves from this danger. For example, if an employee sees a colleague coughing and looking feverish, they might reasonably believe that the colleague has coronavirus and leave work in fear of contracting it themselves.
It does not matter whether there actually is serious and imminent danger or what the employer thinks; what matters is what the employee reasonably believed at the time they acted.
The risk of contracting coronavirus is evidently capable of being a ‘danger’ at work as individuals are interacting with colleagues and members of the public. As the Coronavirus Regulations describe the virus as a ‘serious and imminent threat to public health’ it is unlikely that employers will be able to successfully defend claims on the basis that the risk of coronavirus was not serious.
If an employee is dismissed because they left work because they reasonably believed they were in serious and imminent danger, any dismissal is likely to be deemed automatically unfair.
Furthermore, where an employee has taken such protected action, there is no period of qualifying service and any compensatory award is uncapped. This means that employees who have only been working for an employer for a short period of time can make large claims for compensation, particularly in circumstances in which unemployment is high and finding alternative employment will not be easy.
Constructive Dismissal
Every employment contract contains an implied term that the employer will take reasonable steps to ensure the safety of their employees. If an employer fails to take care of its employees’ safety during the pandemic, employees may be able to resign and claim constructive dismissal on the basis of a fundamental breach of that term. A constructive dismissal may be automatically unfair if the reason for the employer’s repudiatory breach is retaliation against the employee for doing a protected act
So, if an employee resigns because of something the employer has done in retaliation for the employee raising a health and safety concern, that resignation may be deemed to be constructive dismissal and the employee will be able to claim unlimited damages without any qualifying period of service required.
Furloughing in Response to Health and Safety Complaints
If an employee refuses to attend their workplace because they reasonably believe that the danger from coronavirus is serious and imminent, and in response the employer furloughs and reduces their pay to 80%, an employee may well be able to claim automatic unfair dismissal. This is because however reasonable an employer’s conduct is, reducing an individual’s pay without their consent is a repudiatory breach of the employment contract. This means the breach is sufficiently serious to justify termination of the contract.
An employer might be able to defend such a claim by contending that the reason for furloughing the employee was not as a result of their protected conduct, but because the employer was not able to provide a working environment in which the employee felt safe. However, that is a narrow distinction that would be risky to rely on.
No doubt in the future, employment tribunals will need to consider to what extent employees can be expected to bear an increased degree of risk at work because of COVID-19 and how far employers can be expected to go to protect employees from this new danger.
This is an unprecedented situation where the employer’s instruction is likely to be reasonable, and the employee’s refusal to attend the place of work fearing danger may also be reasonable. In employment law terms, this leaves both reasonable employers and fearful employees with difficult decisions about what steps to take in such circumstances.
Our employment team is here to help with any such questions, so please do not hesitate to contact us on 01279 712582 or via email rd@nockolds.co.uk