The first option for employers to consider is whether the employee can work from home. There are broadly three categories of people who may not feel that it is safe to come into work to whom the advice set out below may not apply: those who are shielding, those who have a disability which may put them at higher risk at work, and those who are pregnant. The alternative for employers in these scenarios is usually to continue to pay the employees full pay or to place the employee on furlough. There is further information available to employers on the Acas website.
In the first instance in every case an employer must consider whether it would be discriminatory to refuse home working, to take disciplinary action against the employee or withhold pay.
If the employee does not fall into any of the above categories, and there is no discriminatory angle ( for example, on the basis of age or disability), it is sensible for the employer to proceed by trying to come to an agreement for the employee to attend work. This may well involve thoroughly investigating and considering the employee’s rationale, and putting further measures in place to alleviate the employee’s concerns, such as adjusting their hours of work, moving their working space, providing car parking space and/or increasing the visibility of communications to all staff regarding the steps that the employer is taking.
If the employee continues to refuse to attend work then it may be reasonable, in accordance with public health advice, for the employer to investigate the employee for misconduct for their refusal to follow reasonable management instruction and unauthorised absence. It is likely that the employee would not be entitled to pay for a period of unauthorised absence.
However, it is important that the employer carefully scrutinises the employee’s reasons for refusing to attend work before issuing disciplinary proceedings. This is because s.44 of the Employment Rights Act 1994 gives employees the right not to be treated detrimentally or dismissed (‘automatic dismissal’) where they raise health and safety concerns or stay away from a dangerous workplace in circumstances of danger which they reasonably believed to be serious and imminent. We consider it likely that the circumstances of the Coronavirus pandemic will amount to ‘reasonable belief ’ in serious and imminent danger on the facts. There is no need for the individual to have completed two years’ service in order to benefit from this legislation.
The risks of treating employees detrimentally, withholding their pay or dismissing employees is that the employee may bring a claim of detriment, discrimination (if the employee is treated less favourably than others as a result of any protected characteristic under the Equality Act 2010, including disability), whistleblowing and / or, if the employee is dismissed for withdrawing their labour, unfair dismissal. The award given at Employment tribunal for discrimination claims, unfair automatic dismissal for raising health and safety concerns or whistleblowing, is uncapped.
This article is from the summer 2020 edition of Health and Safety Help!, our newsletter for professionals tasked with health and safety matters. To download the latest issue, please visit the newsletter section of our website. Law covered as at August 2020.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2020.