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COVID, concrete and other concerns | Handling refusals to work on health and safety grounds
Written by James Tamm on 19 September 2023
The ability to work in a safe environment is a fundamental expectation that underpins any employment relationship. So, when an employee believes that an aspect of the workplace is potentially dangerous, they may be reluctant to attend until such concerns are properly addressed.
While the issue of employees refusing to work on safety grounds isn’t new – indeed, it’s one that many employers will have encountered during the pandemic – these sorts of issues could soon resurface, and it’s important to be prepared.
The RAAC crisis, and the recent surge in media coverage surrounding it, has cast a spotlight on this serious and widespread safety issue. As public awareness regarding the potential dangers of this collapse-prone material increases, it’s likely that workers in older buildings containing RAAC may grow apprehensive about their safety. Indeed, while the issue has been primarily reported in relation to schools, the discovery of RAAC in various other types of buildings means other industries could also encounter refusals to work this autumn.
On top of this, a new wave of COVID-19 infections could also trigger a fresh bout of refusals to work. With new variants circling and the WHO warning that people need to be prepared for a possible increase in cases over the autumn and winter, employees may once again grapple with the decision to attend the workplace, particularly if they or their family members are vulnerable.
Managing these situations can be difficult. As a responsible employer, ensuring the health, safety and wellbeing of your staff will no doubt your be number one priority. At the same time, it’s important to ensure your business continues to run smoothly. So, where do employers stand legally when confronted with these complex scenarios?
Legal protections for employees
When faced with an employee refusing to work on health and safety grounds, it’s important that employers tread lightly to avoid legal pitfalls.
Employment law offers certain protection to employees in these situations, and forcing the issue – placing pressure on an employee to attend work where they don’t feel safe to do so – could give them grounds to bring an Employment Tribunal claim.
The most relevant law that employees could seek to rely on is Section 44 of the Employment Rights Act 1996 (ERA). This gives employees the right not to be subjected to any detriment on the grounds that, “in circumstances of danger which the employee reasonably believed to be serious and imminent”, they left or refused to return to their place of work. A detriment will include a decision to withhold pay.
Under Section 100 of the ERA, if the employee is dismissed or resigns in this scenario, the employer could face a claim for automatic unfair dismissal. This effectively means that the dismissal is so intrinsically unfair that an employee is not required to have two years’ continuous service in order to bring a claim, as is the case with ordinary unfair dismissal.
Claims for automatic unfair dismissal cannot be justified or defended, meaning employers cannot evade liability by arguing that their actions were ‘fair’. What’s more, compensation in these sorts of cases is uncapped. All of this increases the potential risk to employers and makes it even more crucial to handle these situations with the utmost care and adherence to employment law.
In addition to Section 44 claims, employers should also be mindful of whistleblowing laws. If an employee raises a complaint regarding inadequate workplace conditions, this could constitute a “protected disclosure” under Section 43 of the ERA. Those who make protected disclosures are entitled not to suffer any detriment or be dismissed as a result. This is a difficult and complex area of law and professional advice should always be sought before disciplining an employee who has made a protected disclosure.
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Do these protections apply in regard to COVID and RAAC?
Whether employees with health and safety concerns are within their right to refuse to attend the workplace will be case-specific. In order to quality for legal protection:
- The employee needs to believe that the workplace presents a “serious and imminent danger” to their health and safety.
- Their belief must be “reasonable”. This doesn’t mean the belief has to be proven true, and it doesn’t matter that the employer might disagree; what matters is whether a rational person, faced with the same circumstances, would also be concerned about their safety.
- The situation should be one where the employee could not have reasonably taken any other action to protect themselves, besides avoiding the workplace entirely. This means that they should have exhausted all reasonable alternatives before refusing to work.
If all of these elements are met, then taking any action against the employee, whether that be not paying them or dismissing them, could fall foul of the protection, as described above.
Having said that, employers can take some comfort from the COVID-related claims regarding this point that have now made their way through the Tribunal system. Generally speaking, employees raising these sorts of arguments have not been successful. Claimants have failed to clear the high hurdle of establishing that COVID presented a serious and imminent risk to their safety. Of course, all those cases are fact-specific and RAAC is potential different to COVID, but these decisions are useful in the current climate.
Reassuring staff and facilitating a return
There are several general steps employers can take to reassure staff and, at the same time, ensure culpability is minimised when handling refusals to work.
Take steps to ensure safety.
The employer’s foremost responsibility is to prioritise the health and safety of their employees. This entails maintaining an up-to-date risk assessment and implementing all recommended safety measures. Equally important is sharing this information, including the assessment’s findings and the actions you have taken to mitigate risk, with your employees. As well as providing reassurance that the workplace is safe, this is a critical component of meeting legal obligations under health and safety law.
Address concerns and provide reassurance.
If an employee raises an issue, find out what it is, getting as much information as possible. Approach the conversation sensitively – don’t reprimand the employee for coming forward with concerns. If you can, address their concerns using objective evidence to support that the workplace is safe for them to attend. Again, refer to your risk assessment. Additionally, consider, in conjunction with the employee, whether there are any further measures that can be taken to make the workplace safer and implement these where possible. If you are satisfied that there are no further steps that can be taken, write to the employee using our Refusal to Work Letter template, asking them to return.
Consider your options.
If you are unable to put the employee’s mind at ease despite taking all reasonably practicable precautions, it is at this point that you will need to evaluate whether the employee’s refusal is reasonable or not, and determine next steps accordingly. Given the risks outlined above, it is wise to consider alternative options such as agreeing unpaid leave, redeploying the employee to another department, or having them take annual leave instead of taking disciplinary action. Finding a mutually-agreeable solution will help to maintain employee relations and avoid the need for a lengthy formal procedure. However, if you have exhausted all possible avenues and formal action is the desired approach, always seek advice first.
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Responding to the RAAC Concrete Crisis | Safety Measures for Schools and Other Sectors
Resolve employee refusals the right way
Managing refusals to work can be difficult, and missteps can result in business disruption, disputes and even Tribunal claims. These situations demand specialist support to ensure quicker resolutions and minimise risk.
At WorkNest, we are perfectly placed to assist you through a combination of expert Health & Safety and Employment Law support. Whether you need help formulating a risk assessment, advice on appropriate safety measures, or step-by-step guidance on managing employees’ concerns and encouraging a return to the workplace without falling foul of the law, our team are here to help.
To discuss your situation and possible solutions, call 0345 226 8393 or request your free consultation using the button below.