Legal answers: Dismissed for refusing to return to work

In this article: Can an employer dismiss or discipline an employee that refuses to attend work because they believe Coronavirus makes it unsafe to do so? Clare Moore Chartered Legal Executive at Taylor and Emmet answers this important question

The government is encouraging workers back, but what happens if you feel it’s unsafe to do so, and decide not to return, can you be disciplined or even dismissed because of the actions you take?

The law states

• The law protects employees from dismissal or poor treatment where:
• They leave (or propose to leave) their workplace in ‘circumstances of danger’; or
• They refuse to return to their workplace whilst the danger persists; and
• The employee reasonably believes the danger to be both serious and imminent; and
• The employee could not reasonably have been expected to avert the danger.

The law also protects employees from dismissal or poor treatment, where, in circumstances of danger that the employee reasonably believes to be serious and imminent, they took or proposed to take appropriate steps to protect themselves or other persons from danger.

This section could potentially be relied upon when a ‘healthy’ employee refuses to attend or return to work because they are concerned for the health and safety of a vulnerable person that lives in their household.

Where an employee is dismissed because of one of the above reasons, an employee can bring a claim in the Employment Tribunal for “automatically unfair dismissal”. Any poor treatment for one of the above reasons which falls short of dismissal (which could include subjecting an employee to disciplinary proceedings) can be brought in the Employment Tribunal as a claim for “detriment”.

Unlike claims for “ordinary” unfair dismissal, which have a two-year qualifying service requirement, claims for automatically unfair dismissal and detriment are not subject to an employee having any minimum length of service.

Matters an employer should consider

In order to avoid claims for automatically unfair dismissal and/or detriment, it’s very important that an employer properly understands the employee’s reasoning for refusing to attend or return to work. Having this understanding will help to inform the employer of the risk of taking steps to discipline or dismiss an employee that is refusing to attend work. An employer ought to consider each case or refusal to attend (or return to work) on its own merits.

The following issues need to be considered in each case:

• Whether, the risk of catching Coronavirus amounts to a “serious and imminent danger”
• This is likely to depend upon a number of factors based upon the nature of the workplace including: whether effective social distancing at work is possible, what measures the employer has put into place in order to stop the spread of the virus, and whether any employees in the workplace have recently contracted Coronavirus.

Another very important point for an employer to consider is whether the employee themselves, or a member of their household is at particular risk of serious illness from Coronavirus due to a health condition. Where an employee (or household member) is in a higher risk group, they are more likely to be protected by the law if they refuse to attend or return to work due to safety concerns. Employees who have underlying medical conditions may also have additional protection under disability discrimination law.

Employers also have to be very mindful that the employee only has to “reasonably believe” that the danger is serious or imminent. Therefore, the employee’s belief as to the level of risk (provided that belief is reasonably held) is something that an employer ought to consider when determining whether there is serious or imminent danger.

How can an employee show that they could “not reasonably have been expected to avert the danger”?

Usually before taking a decision not to attend or return to a place of work, an employee would be expected to raise their concerns with their employer. Raising concerns is likely to give the employer the opportunity to put any additional measures or protections into place that are necessary to avert the danger.

Even if an employer has not first raised their concerns to their employer, an employer should almost always explore the reason for non-attendance with the employee before deciding to take disciplinary action.

Steps employers and employees can take

Clear and open lines of communication are key. Employers should be mindful that each employee has a unique set of personal circumstances and should be prepared to be flexible when necessary and possible. For example, where an employee is particularly worried about travelling on public transport at peak times, it might be possible to agree different start and finish times.

In order to avoid claims being brought for automatically unfair dismissal or detriment, it is very important that an employer considers a wide range of factors before disciplining or dismissing an employee. Employers should be aware that compensation for automatically unfair dismissal and detriment claims is uncapped. Therefore, there are potentially very severe financial consequences for employers that get it wrong.

We would recommend that specialist legal advice is taken in any situation where an employer is considering disciplining or dismissing an employee.

This article should only be considered as guidance and should not be taken as specific legal advice. To claim your free 45 minutes of legal guidance with Taylor & Emmet Solicitors as part of your IMI membership call 08701 200009.