Claire Vane of Integrated Resources writes....
There are a number of past legal cases that have been giving us some guidance as to the ways employers and employees should behave in relation to attending work during the Covid pandemic and what may, or may not, in time prove to be reasonable. This is immensely challenging as oftentimes people’s behaviour is informed by their own risk appetite, or the risk appetite of those around them which is, at best, varying.
The cases are complex and not a perfect comparator for our current situation. The actions of employers and employees during COVID are, as yet, untested in a tribunal sense, and it will be some time before we are given clear guidance by the Court of Appeal. In the meantime, we have to make the best intelligent guess about what behaviour and resultant actions might be deemed reasonable, based on existing cases.
There has been a lot written about Section 44 and Section 100 of the Employment Rights Act and it is worth looking back, before Covid, to see what backcloth there is, and from which we can extrapolate and thereby make some sensible decisions.
The first of those cases worth thinking about, is Hamilton vs Solomon and Wu, which indicates that an employee, in backing up his or her decision not to work, has to have a reasonable belief of serious imminent danger. The presence of Covid in society does make a potential legal claim of this sort more likely. In this particular judgement, the outcome was summarised as follows:
“The claimant could not in the circumstances reasonably believe that there was a risk to health and safety of any employee, including him, arising from the circumstances which actually existed at the respondent’s workshop….. In addition, I concluded that there were not….”circumstances of danger which [the claimant] reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert” in the part of the workshop to which Mr Solomon had required him to go and work. That was because I concluded that it was not reasonable for the claimant to believe that his workplace was not safe because its dust extraction arrangements were to any extent inadequate”
There has been a great deal of argument about the circumstances in which individuals “feel” that there is a real danger. An important consideration to take into account is whether the dangers were generated by the workplace itself, as per Section 100 of the Employment Rights Act. Covid affects not just the workplace and the danger is not therefore generated by the workplace and so we might reasonably conclude that it will not provide a good argument to lodge should an employee raise a claim against an employer to say that Covid has been generated by the workplace as a defence to their not working.
Another particular case in mind is Harvest Press Ltd vs McCaffrey. From this, it seems clear that premises or the place of work could become dangerous as a result of the presence or absence of an employee. For example, premises might become unsafe as a result of the presence of an unskilled, untrained employee working on dangerous processes in a workplace where the danger of a mistake is not just to that employee, but to the colleagues who are working with him. It seems, therefore, that circumstances of danger covered by Section 100 would be apt to cover such a situation. Had an employee walked out because of the presence of an unskilled and untrained operative in those circumstances, he/she might well be entitled to the protection of legislation.
Refusal to work is dealt with too in Dent vs GRO. It is interesting to recognise that there will be two kinds of refusals in the workplace:
those who may not come (at all) to the workplace.
who will refuse to do certain actions.
Both groups may call on the Employment Rights Act to protect them. The position of the employer may be tested and I have dealt with the range of possible actions below.
What about Travel to work?
We are also asked many questions about Covid and a possible refusal to go to work owing to the potential travel risks. With the perceived dangers of travel, (e.g. on bus or tube) therefore, might one always be reasonably expected to go to work? There is some past case law which can be helpful in drawing some conclusions.
If we look at Edwards and others versus The Secretary of State for Justice, we note that this deals with the issue of an individual who is relying on public transport; can he/she rely on the arguments under the relevant sections – 44 and 100 of the Employment Rights Act – to protect them from coming to work if, say, they have to get a tube or a bus? If they believe that there is a real and imminent danger caused by taking a bus or a tube, then it is likely that the courts will regard them as protected under section 100 of the Employment Rights Act.
In this particular case, employees worked on Dartmoor and, on a snowy day, transport was provided by the prison to take them to the prison where they worked. It was agreed that if transport had failed to come, they would remain at home and be paid. Apparently a 4x4 vehicle was sent by the prison, which the employees didn’t consider to be very safe. They chose not to travel in the 4x4, returned home and were not paid. They argued at an Employment Tribunal under the premise of the unlawful deduction of wages. The Tribunal decided that the 4x4 was deemed an extension of the workplace, and therefore we might concede that section 44 could likely extend to the area of transportation into work. However, this point has not yet been tested in relation to Covid.
On this point, it is better that employers are pre-emptive and individuals should be encouraged to look for alternatives to get to work (or work from home). For example, another office, another way or place of working, another mode of transport (e.g. car) - and still the potential claimant would have to prove that the fear of imminent danger was real.
This big question continually asked:
Is an employee entitled to be paid when staying at home and not working?
Under section 44 of the Employment Rights Act, the employer is required to pay someone who is ready, willing and able to work. If they won’t travel, then they are not ready or willing. Section 44 is clear that an individual cannot suffer a detriment by exercising a right to stay away from work. It will take several years until the Supreme Court has its say on this, which will give categorical advice. In the meantime, we have to take a guess extrapolating from other surrounding rules and legislation. Thus far, it is our view (and it can only be a view) that employees would not be entitled to be paid. It is almost impossible to distinguish between somebody who is playing games with the law and somebody who is genuinely scared.
In practical terms there are three possible options for somebody who refuses to come in to work as a result of Covid:
Dismiss the employee (nuclear option and in our view not viable). (However, please note that there is no two year qualifying period for such a claim and the upper cap of £88,519.00 or 52 weeks gross salary, whichever is the lower, does not apply either.) Dismissing the employee is therefore absolutely not a good idea and there is also the tentative argument of an employee refusing a reasonable instruction.
OR
Let the employee stay at home on full pay.
Ditto but unpaid.
Our preferred option would be to go for number 3. Dismissing the employee is, in our opinion, out of the question as the risks are too high.
If you choose option 3, which is our preferred option, there will be some who won’t come back to the workplace, and they will argue their point under section 100 of the Employment Rights Act and say that they have a reasonable belief that it is not safe to be at work.
The second option is to let an employee stay at home on full pay. The plus of this is that the employer will not run the risk of being sued but it will cost the employer enormously, for no work and will encourage others to follow suit, so this is not, in our view, a practical option.
Option 3 - of letting the employee stay at home unpaid is probably, on balance, the best option. There are going to be different groups of people in this category:
Of those who decide to stay at home unpaid:
some will stay at home,
some will decide to return to work because of the lack of payment,
some will accept the decision and do nothing, and
others will sue.
If the latter group is successful in the legal suit, the employer may be required to pay back-pay, and this is the worst possible scenario. The pluses are that there will be no copycat behaviour and that immediate costs to the employer are, hopefully, minimised. This may not be the best option (as there are downsides), but it is certainly the least-bad option.
This blog may produce useful arguments for thinking through how to handle employees who are nervous, bearing in mind it will be some time before we see any case law.
If you’d like to discuss the pros and cons of the various arguments, and have difficulty making decisions because of the Covid pandemic, then please do get in touch as we are dealing with this on an hour-by-hour and day-by-day basis.