The right to refuse work?

Some of the most common queries received in recent weeks have related to whether employers are able to force employees to return to work and, conversely, whether employees can refuse to return to work.

Prior to the current pandemic queries of this nature were virtually unheard of; in the majority of cases, an employer is able to require that employees carry out their work at a specific location (e.g. an office) during specific times (e.g. 9:00 am to 5:00 pm).

Thus, under normal circumstances, employers would be within their rights to require that employees attend their normal place of work, with employees having little option but to do as instructed.

The potential risks associated with many workplaces in light of the current pandemic have brought the obligations owed by employers to employees such as the common law duty of care, compliance with health and safety legislation, and the duty to comply with equality legislation into sharp focus.

The government’s COVID-19 return to the official guidance places a duty on all businesses to conduct a COVID-19 risk assessment. In particular, it requires that staff groups are consulted about the COVID-19 risk assessment with a copy of that risk assessment to be published on the organisation’s website where the business employs more than 50 people.

Despite these measures, it is highly likely that less well-known employment rights relating to the health and safety of workers found in Sections 44 and 100 of the Employment Rights Act 1996 (and stemming from the EU Framework Directive) will become increasingly familiar to businesses in coming months.

Article 11(4) of the Framework Directive (89/391/EEC) was introduced as a health and safety measure and requires that the Member States introduce provisions to ensure that neither workers nor workers’ representatives be placed at a disadvantage as a consequence of exercising rights under the Directive. Significantly.

Article 8(4) of the Directive provides that “[w]orkers who, in the event of serious, imminent and unavoidable danger, leave their workstation and/or a dangerous area may not be placed at any disadvantage because of their action and must be protected against any harmful and unjustified consequences.

In accordance with national laws and/or practices” and places an obligation on employers to inform workers of the risks of serious and imminent danger and to take action to enable workers to stop or leave work in the event of any such “serious, imminent and unavoidable danger”.

The UK elected to enshrine these rights in domestic law via sections 44 and 100 of the Employment Rights Act 1996.

Section 44 (1) provides that “[a]n employee has the right not to be subjected to any detriment by any act or any deliberate failure to act, by his employer” on a number of grounds. In particular:

• having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities (Section 44(1)(a));
• being a representative of workers on matters of health and safety at work or member of a safety committee…in accordance with arrangements established under or by virtue of any enactment, or…by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee (Section 44(1)(b));
• being an employee at a place where there was no such representative safety committee or there was such a representative safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought it to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety (Section 44(1)(c);
• in circumstances of danger that 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 (Section 44(1)(d)); and,
• in circumstances of danger that 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 danger (Section 44(1)(e).

Section 100(1) provides that an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that:

• having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities (Section 100(1)(a));
• being a representative of workers on matters of health and safety at work or member of a safety committee in accordance with arrangements established under or by virtue of any enactment or by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee (Section 100(1)(b));
• being an employee at a place where there was no such representative or safety committee or there was such a representative safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought it to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety (Section 100(1)(c));
• in circumstances of danger that 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 (Section 100(1)(d)); and,
• in circumstances of danger that 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 danger (Section 100(1)(e)).

As can be seen from the legislative provisions, this is a potentially complex area of employment law and we would strongly recommend that anyone affected by these issues seek professional advice.

 If you have any questions or need any legal advice give us a call at 0118 914 5622, or email us at info@dphlegal.com