While many people will now be working from home during the Covid-19 pandemic a large proportion of people will still be required to go into work. This article will help inform people what their rights are if they think their workplace is unsafe due to Covid-19 and if the question of dismissal arises.
Mark Pritchard answers the common questions.
The reason why it might be unsafe for someone to attend work will fall into three categories;
It is important to establish that employees have the right not to be dismissed if they complain about, or refuse to work in, unsafe conditions [s.100 ERA & Directive No.89/391 on the introduction of measures to encourage improvements in the safety and health of workers at work (‘the Directive’).
If as an employee, you have a reasonable belief that there is a danger within your workplace that is serious and imminent which you cannot reasonably be expected to avert, you have the right to leave that place of work until that danger is addressed.
There is no doubt given the mortality of Covid-19 and the wider societal implications of increased transmission that an unhygienic workplace with no clear prevention policy in place would constitute a serious and imminent danger. The government has issued clear guidance for workplaces. If your employer fails to follow the guidance you would be entitled not to attend work until such time as they do.
If you leave work because it is dangerous you will be legally protected from dismissal regardless of your length of service. unlike in cases of ordinary unfair dismissal, individuals employed in the police service are not excluded from bringing claims of automatic unfair dismissal under s.200(1) ERA.
Any punishment which falls short of dismissal after raising a concern that an employer is failing to comply with government guidance will give rise to a claim of constructive dismissal per Skelton v Artel Services Ltd ET Case No.3104190/99. It will always be essential that issues are properly raised with an employer and they must be given a chance to put things right before any claim for constructive dismissal will be successful.
If you have shown symptoms of Covid-19 the current government guidance is to self-isolate. This measure is directly designed to prevent the further spread of the virus. S.100(e) prevents an employee from dismissal in circumstances of danger which 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. Any tribunal would have to assess whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. Given that the appropriate step would be following government issue guidance any dismissal for refusing to attend work would be automatically unfair.
According to the guidance there are three groups of people that are considered to be higher risk of developing serious complications should they contract Covid-19;
If you fall within one of the above groups you are not protected in the same way as people are protected under s.100 this is because the risk is due to your individual characteristics and could not be addressed by any steps the employer takes in the work environment. The protection in cases of people within these groups comes from the Equality Act 2010 (EqA).
S.39(2)(c) EqA provides that an employer must not discriminate against an employee by dismissing him or her. An employer will directly discriminate against an employee if, in dismissing him or her, it treats that employee less favourably than it would treat others and that treatment is ‘because of’ a protected characteristic S.13(1) EqA.
The protected characteristics engaged by the high-risk groups are age, pregnancy and disability.
Dismissing someone from work because their age places them into a high risk category would likely be seen as direct discrimination. Martin v SS Photay and Associates ET Case No.1100242/07 found that that there will be very few circumstances in which an employee’s age per se represents such a health and safety risk that dismissal is justified. It would be difficult for an employer to demonstrate that a person is not capable of performing their duties once they return from the prescribed period of isolation. This would make a dismissal on the grounds of age unlawful.
The law is even more explicit when it comes to pregnancy s.18 EqA states that a person discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably because of the pregnancy, or because of illness suffered by her as a result of it. It goes on to say that a person discriminates against a woman if they treat her unfavourably because she is on compulsory maternity leave or is seeking additional maternity leave. Given the risks posed to a pregnancy by Covid-19 any dismissal or requirement to work during pregnancy against government advice would be seen as unlawful.
There is a duty for all employers to make reasonable adjustments to a person’s workplace if a person has a disability. The most common reasonable adjustment during the Covid-19 pandemic would be to allow someone to work from home. In circumstances where it is not possible to work from home paid leave for the period of time the government recommends staying home could be seen as a reasonable adjustment. As the guidance comes from the government, there would be a serious risk to life if the guidance were not followed and crucially it is not for an indefinite period there is a strong likelihood that a tribunal would find this to be a reasonable adjustment. This assertion is strengthened by the government issuing grants to pay up to 80% of the salary of employees unable to attend work.
Anyone wishing to bring a claim for unfair dismissal or discrimination must do so within 3 months of dismissal.
Before a claim is brought to the tribunal an attempt to resolve the matter using ACAS should be attempted first. The 3-month limitation period is paused while ACAS deal with the claim.
Employment claims can give rise to complex issues in law. It is advisable to seek legal advice as soon as possible.
Mark Pritchard can assist with employment law issues on a Direct Access basis or instructed by a solicitor.
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