Covid-19: ‘Serious and Imminent Danger’ and the Return to Work

Beth Hale on how to prepare for a return to the office in light of the government’s latest Covid-19 guidance and a recent decision on employees’ right to refuse to attend work on health and safety grounds.

The Covid-19 pandemic has given rise to many novel and interesting employment law issues and continues to present challenges for both employers and employees. In this article, we discuss recent developments in this area and provide some practical tips for employers as we gradually emerge from lockdown.

Decision in Rodgers v Leeds Laser Cutting Ltd [2021]

Rodgers is one of the first employment tribunal decisions to consider the application of the statutory protections under the Employment Rights Act 1996 (ERA) when the employee’s concerns relate to the risks presented by Covid-19 in the workplace.

Mr Rodgers worked for Leeds Laser Cutting Ltd, which dismissed him in April 2020. He brought a claim for automatic unfair dismissal in the employment tribunal, alleging that he had been dismissed because he refused to return to work in circumstances of danger that he believed to be serious and imminent (s100(1)(d) ERA). Mr Rodgers has a child with a chronic condition and said that he did not feel safe coming into work during the first national lockdown because of his fears of catching Covid-19. His employer said that his failure to attend work was not reasonable as his job could not be done from home and the business had put in place appropriate safety measures to protect staff.

Section 100(1) of the ERA states that an employee who is dismissed will be regarded as unfairly dismissed if the reason (or principal reason) for the dismissal is that:

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the

 The employment judge dismissed Mr Rodgers’ claim. Although Mr Rodgers had serious and understandable concerns about the risk of catching coronavirus outside his home, he had never raised concerns about workplace safety with his employer. He had merely sent a text saying that he intended ‘to stay off work until the lockdown has eased’. Mr Rodgers accepted that social distancing was not hard in the workplace, that frequent handwashing was practised and that his workplace (a large warehouse) was ‘possibly safer than the community at large’.

The judge acknowledged that employees can, in principle, rely on s100(1) ERA in relation to concerns about the pandemic, but only if they reasonably believe they are in serious and imminent danger in the workplace rather than in the world at large. Relying on the provision in the way attempted by Mr Rodgers would risk allowing any employee to refuse to work in any circumstances simply by virtue of the pandemic.

This is only a first instance decision (and therefore not binding on future tribunals). In addition, the judge did not directly address whether a fear of catching coronavirus in the workplace would satisfy all the relevant tests in s100(1). However, this case suggests that there are limits on the duty imposed on employers to provide a safe working environment and may provide some level of comfort. In particular,  the  judge  suggests  that  the employer’s duty is limited to safety in the workplace, and the fact that there may be a high risk of catching coronavirus generally during a global pandemic  does  not  automatically place employers in breach of their obligations. It remains unclear whether employers could be liable for risks on transport used by employees to get to and from the workplace.

Mr Rodgers did not help himself by giving ‘vague’ and ‘contradictory’ evidence. Also, it was reasonable to expect him to try and avert any  perceived  danger  by  raising  his  concerns with his employer before deciding to remain at home. It was unhelpful to his case that he had not done this.

Employers should not assume that similar cases will fail, however, particularly if employees refuse to come into work during spikes in infection rates, or have particular reasons for being fearful (such as underlying health conditions). Employers should still ensure compliance with their health and safety obligations (such as those set out in the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999) and follow the government’s guidelines for their sector on minimising the risk of infection.

Planned extension of the health and safety detriment provisions to workers

The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 (the Order) is due to come into force on 31 May 2021. This will extend the right not to be subjected to detriment to workers in certain health and safety cases.

As currently drafted, s44 of the ERA states that an employee has the right not be subjected to any detriment by their employer on the same grounds as those set out in s100 ERA. Section 44 protects an employee from being subjected to a detriment (such as being suspended or having their pay deducted) for exercising their right to leave their workplace in circumstances of danger which they reasonably believe to be serious and imminent.

In the recent case of R (on the application of the IWGB) v Secretary of State for Work and Pensions [2021], the High Court found that the UK had failed to implement two  EU directives properly dating back to 1989. The court held that both directives imposed obligations relating to a wider category of individuals than just employees.

As a result of this case, the Order was laid before Parliament on 1 March 2021. This will insert new provisions into the ERA extending the protections of s44 ERA to workers as well as employees.

While these amendments will be welcomed by those who have not previously been afforded such protection from detriment, it is important to note that the Order will only apply to cases brought on or after 31 May 2021. This may limit workers’ ability to take steps to protect themselves from perceived danger in the workplace due to Covid-19 while the pandemic is at its height.

Furthermore, the new Order does not extend the protection from dismissal under s100 ERA. The reason for this is that workers do not benefit from protection from unfair dismissal and therefore there is no obligation to confer such protection specifically for health and safety reasons.

Latest Covid-secure guidance for offices

The government recently published new Covid-19-secure guidance for offices and contact centres, which includes updated advice on who should go to work. Under the Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021, which came into force on 29 March 2021 and underpin the gradual easing of lockdown restrictions, employees are no longer legally required to work from home if reasonably possible.

However, the government continues to advise office workers to carry on working from home if they can. This guidance will remain in place until at least Step 4 of the roadmap (which is pencilled in for 21 June 2021), at which point the government will reconsider its working from home guidance as part of a wider review on social distancing.

While the new guidance restates that anyone who can work from home should do so, it also advises employers to consider whether home working is appropriate for employees with physical or mental health difficulties or those working in an unsuitable environment at home. Employers are therefore permitted to open their offices in a limited way to support certain staff who are finding working from home difficult. This might include:

• employees who want or need to use special equipment in the office for health or other reasons (although the guidance makes clear that employers should usually provide employees with equipment to work from home safely and effectively);
• employees who live in cramped or shared accommodation, who are without a proper setup enabling them to work effectively from home or struggling with disturbance from other household members (although the guidance emphasises that the home environment must be ‘particularly’ challenging before it warrants a return to the office); and
• employees whose mental health is suffering because they are working from home.

This does not mean that employers can require everyone to return to the office. They should keep following the latest government guidance and carry out a workplace risk assessment to decide whether it is safe for someone to return for one of the above reasons.

Preparing for the return to the office

Employers may wish to start planning office-based employees’ return to work on the basis of a possible reopening from 21 June 2021. They will need to consider the impact of vaccination and any vaccine certification programme, as well as whether they wish to introduce workplace testing and hybrid or flexible working arrangements. In the lead-up to reopening, they could consider holding small social events, purely on a voluntary basis and in line with government restrictions on gatherings.

Consultation and risk assessment

Employers should ensure that they have carried out a risk assessment and taken adequate steps to minimise health risks in the workplace before employees are set to return. Failing to do so could result in employees raising valid concerns about serious and imminent danger in the workplace, as well as other claims.

The assessment plays a crucial role in assisting with a safe return to work. The outcome of the risk assessment will identify appropriate control measures to reduce or remove the risks of contracting Covid-19. The risks associated with visitors and clients entering the workplace should also be assessed due to the employer’s legal obligation to ensure their health and safety.

Measures employers should consider to protect their workforce will vary depending on the industry and particular workplace in question. Examples could include:

• changing work times;
• staggering shift patterns;
• putting in place social distancing measures;
• reducing contact with other staff; and
• limiting work-related travel.

Employers should also consider the need for personal protective equipment, such as face masks. If a risk assessment concludes that this is necessary, then the equipment should be provided free of charge.

Policies and procedures

Employers will need to revisit and expand on their existing health and safety policies to cover their approach in controlling the risks presented by Covid-19. They should also have a clear process for handling employee complaints and concerns about health and safety.

They should also check that return-to-work plans and policies do not disadvantage protected groups. For example, any change to working hours should  not  disadvantage those with childcare obligations and arrangements for moving around the building should not disadvantage those with a disability.

In addition, those who are classified as vulnerable to Covid-19 may also qualify as disabled for Equality Act 2010 purposes. Accordingly, employers will need to consider making reasonable adjustments to allow them to return safely to work.

Communication is key

 No measures can guarantee that a workplace is completely safe from Covid-19 and it is natural for employees to be wary about returning. In planning a return to the workplace, the most important step for employers to take is to engage in open and constructive dialogue with employees about any concerns they may have and the steps that the employer is taking in response. It is also vital to document all decisions and risk assessments clearly so that the employer has evidence to present to an employment tribunal in the event of a dispute.