Covid-19 and the Return to Work

Posted By: on 14th May 2020 | Category: Employment Law Solicitors

Many businesses are now or shortly to be re-opening following the latest guidance from the Government. Whilst the guidelines are there to be followed they do not replace the statutory obligations of an employer nor do they dilute the statutory protections of the employee.

Section 100 of the Employment Rights Act 1996 [the ERA] protects employees by providing that dismissal shall be automatically unfair where the reason for the dismissal is covered by one of the sections 100(1)(a) to 100(1)(e). Each section specifies particular criteria that have to be met.

For the purposes of this briefing note the three sections are:

  1. Dismissal for raising health and safety concerns through other means (section 100(1)(c))
  2. Dismissal for leaving or staying away from dangerous workplace (section 100(1)(d))
  3. Dismissal for taking action to prevent danger (section 100(1)(e))

Dismissal for raising health and safety concerns through other means (section 100(1)(c))

Section 100(1)(c) of the ERA 1996 protects employees who use reasonable means to bring their employer’s attention to circumstances connected with their work that they reasonably believe are harmful or potentially harmful to health and safety.

Dismissal for leaving or staying away from dangerous workplace (section 100(1)(d))

Section 100(1)(d) protects employees who are dismissed because, in circumstances of danger, which the employee reasonably believed to be serious and imminent and which the employee could not reasonably have been expected to avert, the employee left (or proposed to leave) or (while the danger persisted) refused to return to their workplace or the dangerous part of the workplace.

Dismissal for taking action to prevent danger (section 100(1)(e))

Section 100(1)(e) protects employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger.
The appropriateness of the employee’s steps is to be judged by all the circumstances, including their knowledge and the facilities and advice available to them at that time (section 100(2)).

The dismissal will not be automatically unfair if the employer can show that it was (or would have been) so negligent of the employee to take those steps (or have proposed to take those steps) that a reasonable employer might have dismissed them for taking or proposing to take them.

The protection afforded by section 100(1)(e) does not depend on whether the employer believes in the presence of danger but how the employee honestly and reasonably regards the situation; it is the employee’s state of mind that is relevant, not the employer’s. It has been confirmed that “if an employee was liable to dismissal merely because his employer disagreed with his account of the facts or his opinion as to the action required, the statutory provisions would give the employee little protection”.

The Employment Appeal Tribunal [the EAT] has confirmed that the tribunal should adopt a two-stage test to cases falling within section 100(1)(e), asking:

  • Were there circumstances of danger that the employee reasonably believed to be serious and imminent? Did the employee take or propose to take appropriate steps to protect themselves or other persons from the danger? Or did they take steps to communicate these circumstances to their employer by appropriate means?
  • If the criteria above were made out, was the employer’s sole or principal reason for dismissing the employee due to the employee taking or proposing to take those steps?

Automatically unfair

It is of particular interest to note that such a dismissal in the circumstances set out above is automatic, meaning that the employee does not have to establish any continuity of service e.g. two years which is the normal length of service to be established in most claims for unfair dismissal.

Steps for employer

  • Ensure that employees can return to a safe workplace
  • Ensure that there are appropriate ‘rules’ and ‘guidelines’ in place for employees upon their return to the workplace or such other place of work
  • Ensure that all ‘reasonable’ steps are taken so as to address any concerns or issues which an employee may raise

For employment law advice contact Nigel Targett, Solicitor and Partner at Coole Bevis LLP on 01273 722532 or by email at nigel.targett@coolebevisllp.com.

OUR OFFICES

Brighton Solicitors

Lanes End House,
15 Prince Albert Street,
Brighton BN1 1HY
t. +44 (0)1273 323231
f. +44 (0)1273 820350
info@coolebevisllp.com

Horsham Solicitors

14 Carfax,
Horsham,
West Sussex RH12 1DZ
t. +44 (0)1403 210200
f. +44 (0)1403 241275
info@coolebevisllp.com

Hove Solicitors

79 Church Road,
Hove,
East Sussex BN3 2BB
t. +44 (0)1273 722532
f. +44 (0)1273 326347
info@coolebevisllp.com

Worthing Solicitors

5 The Steyne,
Worthing,
West Sussex BN11 3DT
t. +44 (0)1903 213511
f. +44 (0)1903 237053
info@coolebevisllp.com