In the UK, many employers are busy making the necessary arrangements to re-open their workplaces and bring employees back to work as safely and efficiently as possible. Whilst the current government guidance states that employees who can work from home should continue to do so where possible, this is not an option for some employees and, in any event, employers will want to be prepared for when this guidance changes.

Employer health and safety obligations

Broadly speaking, employers have a legal duty to provide a safe working environment and to ensure the health, safety and welfare of their employees. Employers must be conscious of this when they ask employees to return to work and ensure that they (i) conduct a risk assessment; and (ii) consult with employees (or their representatives) about the health and safety aspects of re-opening the workplace, particularly if this involves the introduction of new health and safety measures. Employers are not obliged to remove the risks completely, but they should take all reasonably practicable steps in order to minimise the risks, which will include complying with current government guidance.

Can an employee refuse to return to work on the basis that they believe they would be in “serious and imminent danger”?

In recent weeks, there has been some discussion in the press about a small piece of employment legislation which could give employees the right to walk out of their workplace if they believe that they are in serious and imminent danger. Therefore, whilst the majority of employees are expected to return to work without any issues, it is important that employers are aware of this protection and how it operates in practice.

Employees have a statutory right not to be subjected to any detriment or dismissed if they refuse to come into work because they have a reasonable and genuine belief that they are in serious and imminent danger. Whether the employer agrees with the employee is irrelevant, as long as the employee’s perspective is reasonable. Although this protection was initially designed with extreme health and safety emergencies in mind (e.g. fire or asbestos), it could still apply in relation to the ongoing public health crisis that has been caused by Covid-19. 

The general view is that, if the protection applies, employees would be entitled to remain at home on full pay while they cannot come in to work (as a failure to pay an employee would usually be considered a detriment). Whilst it may be possible to make an argument that a failure to pay an employee whose work was not performed is not always a detriment, this would be a relatively high risk approach as these arguments are currently untested.

What can employers do now?

Until this matter is tested in litigation, it is difficult to anticipate with any certainty how the protection will apply in the context of Covid-19; for example, will it only apply if an employee is clinically vulnerable and/or in cases where there are very significant health and safety issues?

We are hopeful that we will get some clarification soon. However, in the meantime, employers should be mindful that they have a duty to protect their employees’ health and safety and comply with government guidance (as well as any relevant legislation). This is likely to involve steps such as providing adequate hand sanitiser and washing facilities, facilitating social distancing in the workplace and allowing employees to adjust their working hours in order to avoid peak travel times.

If an employee does refuse to return to work, this should be dealt with on a case by case basis with reference to their specific circumstances (e.g. is the employee vulnerable and/or do they have a disability). Any concerns that the employee raises should be investigated, and the employer should provide a written response.  

If you have any questions or require advice in relation to re-opening a workplace, please contact yoko.nakada@lewissilkin.com.