Can an employee refuse to come to work for fear of contracting Coronavirus? Considerations of s. 44(1)(d) and s.100 Employment Rights Act 1996 by Tom Bourne-Arton

S.44(1)(d) ERA 1996 states:

“(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that –

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

S.44(1)(d) deals with detriments whereas s.100(1)(d) ERA 1996 provides that where an employee is dismissed for leaving work or refusing to come to work for the same reasons as set out in s.44(1)(d) that dismissal will be unfair.

Neither s.44(1)(d) nor s.100(1)(d) have been subject to extensive judicial determination.

“Detriment” in this context is the same as for detriments under Part V ERA 1996 generally. An employee is subjected to a detriment if they are put at a disadvantage. This can be established by comparison to an actual comparator or a hypothetical one.

There is no qualifying period of continuous employment required to have the right not to be subjected to a detriment on health and safety grounds.

Until recently the protection conferred by s.44(1) was restricted to employees and not workers. Save for those that work in the police service, who also have the same right whether or not they are an employee by virtue of s.49A ERA 1996. In the recent High Court decision of International Workers Union of Great Britain v Secretary of State for Work and Pensions [2021] IRLR 102 Chamberlain J held that the UK had failed to properly transpose into domestic law the Framework Health and Safety Directive 89/391/EC. Art. 8(4) and 8(5) of that Directive required that workers who took the appropriate steps in response to serious and imminent danger were not to be disadvantaged for doing so, unless they acted carelessly or negligently. This requirement was properly transposed as regards employees by s.44 and s.100 ERA 1996 but not for workers. N.B. s.44(3) and s.100(3) both deal with the Directives reference to negligence. If this decision is not successfully appealed s.44 and s.100 ERA 1996 will have to be amended to included workers.

In order to satisfy s.44(1)(d) and s.100(1)(d) the employee must prove that their belief to be in serious and imminent danger is both genuine and reasonable, and that they could not reasonably avert the danger. In relation to their “belief” the test is an objectively subjective one, in that the Tribunal should consider if the employee subjectively held the belief and if they did whether doing so was objectively reasonable. 

The “danger” does not have to arise from the circumstances of the workplace itself. In situations involving concerns about Coronavirus it is likely the perceived danger is due to the workplace environment and so would fall within this section.

What is meant by “serious and imminent”? Unless and until a tribunal sets out a different definition of serious and imminent, in this context the natural meaning to these words should probably be used. Serious is synonymous with severe in effect. Imminent is synonymous with likely to happen very soon.

In relation to Coronavirus, whilst there remain some who do not believe it is serious, for many the risk of contracting Coronavirus is a serious one. Whilst statistics may show hospitalisation with Coronavirus is most likely  for those aged over 70 years old, and/or those with underlying health problems, there have been serious cases involving those younger than 70 without any underlying health problems. Will it be held that the danger is a serious one regardless of age or underlying health? The belief of the employee will not be judged with the benefit of hindsight, and so what the scientists and statisticians have been able to establish at a later stage should not impact on the reasonableness of the belief at an earlier stage. Given the advice from SAGE and the Government about the seriousness of Coronavirus it is unlikely an employee will be held to have an unreasonable belief in the seriousness of contracting Coronavirus.

Will the belief that the danger is  imminent be a reasonably held one?

The Government, via the Secretary of State, declared that coronavirus posed a serious and imminent threat to public health. It is not yet known whether the tribunals will adopt this declaration and determine that at any point during the coronavirus pandemic the risk posed remained imminent regardless of individual circumstances or whether imminence needs to be considered on a narrower basis on a case by case basis. However, it must be remembered that this declaration was at the outset of the pandemic and that as time has gone on various measures have been shown to minimise the risk of contracting Coronavirus.

So whilst it might be held that when a lockdown was imposed, for example, the risk was imminent regardless of the specific workplace it is perhaps more likely that a tribunal faced with such a case will look at the specifics of the particular workplace in question. For example, the risk of catching Coronavirus in a workplace where there is only one employee is likely to be treated as not imminent, whereas where there are 1000 employees working in a workplace where there are no hand sanitisers, where no-one is tested on a regular basis, and where the workforce work in close proximity it might be said that the risk was imminent. These are outlier examples and show why a case by case basis approach is likely to be adopted. Absent judicial input on this issue it is impossible to say how “imminent” will be decided in cases where Coronavirus is the perceived danger, but it is suggested it will be decided on a case by case basis – i.e. it will be fact sensitive.

One thing that can be safely stated is that employers will place themselves in a better position to defend such claims where they have followed Government guidance on how to minimise the risks to employees contracting Coronavirus, and where they have regularly informed their workforce the steps they are taking.  If the employee is made aware of the many preventative steps an employer is taking the less likely their belief of being in serious and imminent danger will be reasonably held.

Strike out application for abuse of process following Cable v LVI. – Farrar’s Building Barristers Chambers

Tom Bourne-Arton is a member of the Farrar’s Building Employment Team.  Please direct any instructions or queries to the Clerking Team.

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