Reducing the risk of an automatic unfair dismissal claim for a health and safety reason during the coronavirus epidemic

 

Employment legislation protects employees who are dismissed because, in circumstances of danger, which the employee reasonably believed to be serious and imminent and which the employee could not reasonably have been expected to avert, the employee left (or proposed to leave) or (while the danger persisted) refused to return to their workplace or the dangerous part of the workplace.

Significantly, caselaw has shown that it is the employee’s belief that matters as to whether the risk to health and safety in the workplace is serious and imminent, provided this belief is reasonably held. It is not the employer’s perception of the risk where an employee is dismissed in this circumstance that is relevant.

Furthermore, the employee will need to show that they cannot reasonably avert that risk e.g. by raising their concerns with their employer in the first instance, rather than simply leaving their workplace and/or refusing to return. 

Employees will also be entitled to damages following a successful employment tribunal claim where they suffer a detriment (such as a disciplinary warning) in this circumstance. Furthermore, informing an employer that the health or safety of any individual is or is likely to be endangered amounts to whistleblowing. Where an employee is dismissed for whistleblowing, this would amount to an automatically unfair reason for dismissal.  There is also a risk of a constructive dismissal claim if the employer fails to reasonably respond to health and safety issues raised.

It is inevitable that during the current coronavirus epidemic, employers will see in increase in claims where employees are dismissed and where the employee is able to prove on the facts that this circumstance applied.

Employers are advised to set out in writing to their employees what measures they have implemented in the workplace in accordance with public health advice, to keep employees safe so far as reasonably practicable. Informing employees of these measures would reduce the risk of an employee reasonably believing that there is a serious and imminent risk to their health and safety by attending work (or at least not more so than that outside the workplace).

Employers are also advised to notify employees to whom they should notify any health and safety concerns in the first instance, such as their line manager, so that the employer would have a stronger argument that the employee did not take steps to reasonably avert a health and safety risk in the event the employee sought to argue that any subsequent dismissal or disciplinary action was due to a health and safety concern.  

The government has published guidance for different sectors, such as for retail, trades people, for work carried out in peoples’ homes and for the construction industry, on implementing social distancing in the workplace: https://www.gov.uk/guidance/social-distancing-in-the-workplace-during-coronavirus-covid-19-sector-guidance