Following the announcement by the Government that schools would see a gradual phased reopening, Ison Harrison has had a steady flow of enquiries from teachers querying their rights. Many are naturally concerned at feeling pressured to return to work whilst there is still a very real risk of catching Covid-19. This feature discusses the rights and possible protections afforded to employees concerned about returning to work in an unsafe environment.

In the event of any dismissal Section 100 of the Employment Rights Act 1996 protects employees by providing that a dismissal shall be automatically unfair where the reason for the dismissal is covered by one of sections 100(1)(a) to 100(1)(e). Each section specifies particular criteria that have to be met. These are considered below.

The concern should firstly be raised with and reported to the health and safety representative or safety committee.

Section 100(1)(d) protects an employee who is dismissed in circumstances where the employee reasonably believed themselves to be in serious and imminent danger, and which the employee believed could not reasonably have been averted, and as a result the employee refused to return to their workplace. Any such dismissal would be automatically unfair.

Section 100(1)(e) further protects employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger Employees who take steps to communicate relevant circumstances to their employer by appropriate means are also protected.

The protection afforded by section 100(1)(e) does not depend on whether the employer believes in the presence of danger but how the employee honestly and reasonably regards the situation; it is the employee’s state of mind that is relevant, not the employer’s. A two-stage test is adopted in the application of section 100(1)(e). Firstly, were there circumstances of danger that the employee reasonably believed to be serious and imminent? Did the employee take or propose to take appropriate steps to protect themselves or other persons from the danger? Or did they take steps to communicate these circumstances to their employer by appropriate means? Secondly, if the above criteria are made out, was the employer’s sole or principal reason for dismissing the employee due to the employee taking or proposing to take those steps?

Workers are also protected under the Public Interest Disclosure or whistleblower provisions of the Employment Rights Act. This covers situations where they are not only dismissed but subjected to any detriment short of dismissal, such as disciplinary action (or threat of) or deductions in pay. A worker would need to firstly make a written disclosure which showed that the health or safety of the worker or anyone else had been, was being or was likely to be endangered. Further it may also be relied upon that the employer had failed or was failing or was likely to fail to comply with a legal obligation to which it was subject; that legal obligation being to provide a safe place to work. Any such dismissal would be deemed to be automatically unfair.

If an employee does not wish to attend work because of fears of coronavirus then the employer should listen to their concerns and deal with them sensitively. ACAS guidance states employers must try and resolve genuine concerns, with a view to protecting the health and safety of staff. Practical solutions include agreeing for a period of unpaid leave or holiday leave to avoid conflict and disciplinary situations, which are likely to result in expensive tribunal proceedings.

Importantly, employers should be wary in cases of employees in high risk categories of contracting Covid 19, including older employees, pregnant and those with compromised immune systems as well as any sick employee who is self-isolating or in a house with someone self-isolating.

If you are an employee and you are unsure of your options, or if you are a business owner looking for advice on how to stay ahead of the coronavirus curve please contact our Head of Employment Yunus Lunat on 0113 284 5023 or email yunus.lunat@isonharrison.co.uk.

Yunus Lunat is a recognised Employment Law expert who has been featured on many media outlets as a specialist in his field. He has appeared on several expert panels including the BBC and Sky News.