Refusing To Work Due To Covid-19 Fears – Legislative Change

The last year has seen substantial employment law related concerns and queries being raised by employees on a wide variety of Covid-19 related issues including furlough, redundancy, changes to working terms, shielding and self-isolation.

Another area which has provoked much discussion is the issue of whether an employee can refuse to attend work on the grounds they are fearful for their health and safety and what, if any, protection they have in the event that they do opt to stay away.

Covid-19 concerns in relation to returning to the workplace

Although the Government laid down its lockdown exit plan last month, their advice still remains that those who can work at home should do so and it is anticipated that this will continue to be the instruction until June.

What then of those employees who are unexpectedly being asked to return to the workplace where there is no apparent justification or change in circumstance and who have genuine concerns about their health and safety in the emergence of further strains of the virus and continuing reports of an overwhelmed NHS?

The relevant law pertaining to this is s44 Employment Rights Act 1996 which provides that an employee has the right not to be subjected to any ‘detrimental’ act, or failure to act, by their employer on the basis that the employee left or refused to return to work or took appropriate steps to protect themselves because the employee believed they were in serious and imminent danger. This provision has been used increasingly since the global pandemic began by employees who have been anxious about attending or travelling to work for fear of catching coronavirus.

Recent case law

The High Court in a case heard in November 2020 (before Brexit was complete), R (Independent Workers Union of Great Britain) v Secretary of State for Work and Pensions and another, handed down an important judgment in a judicial review brought by IWGB against the Secretaries of State for Work and Pensions and Business, Energy and Industrial Strategy.

IWGB argued that the European Health and Safety Directives (“the Directives”) required Member States to confer health and safety protections on workers, whereas domestic legislation only protected ‘employees’. The issue arose in the context of IWGB’s members working during the Covid-19 pandemic and evidence was being advanced that gig economy workers were not being provided with PPE (personal protective equipment).

The Court’s view was that restricting health and safety protection in employment to ‘employees’ only was inconsistent with the Directives.

Changes in legislation

As a result of this, the Government has now laid down new regulations which extend the protection of s44 Employment Rights Act 1996 to ‘workers’. If approved (which we envisage it will be), the extra protection for workers will apply to any detriments taking place on or after 31st May 2021.

In practical terms, if may enable a larger number of the labour force to rely on this health and safety protection where a detriment is suffered by someone who refuses to return to work because they reasonably believe themselves (or others) to be in danger in the workplace.