COVID-19
have leſt work, refused to work in certain areas, refused to undertake certain duties or refused to attend work at all. Disciplinary action short of dismissal, such as withholding pay, could amount to a detriment where an employee has a reasonable belief that they are in “serious and imminent” danger, which may give rise to a claim.
S.100(1)(d) protects employees from dismissal on the grounds of absence from work if that absence was because the employee had a reasonable belief that attending work would put them in “serious and imminent” danger which they could not reasonably have been expected to avoid. Danger for these purposes could include the risk of contracting COVID-19 from an infected service user.
To claim, the employee would need to show that they reasonably believed the danger to be serious and imminent (they do not need to show that the danger actually existed). Given the risk of catching COVID-19 is a very real threat, it is possible that an employee’s concerns in this situation would pass this test. Arguably, however, if there are no cases of COVID-19 in the care home, an employee would struggle to justify their fear, especially if the employer can show that all the necessary precautionary steps have been taken. Plus, given we are now past the peak, the danger is less likely to be seen as “imminent”.
SHOULD EMPLOYERS BE CONCERNED ABOUT
WHISTLEBLOWING CLAIMS? Even if an employee is not able to show that there was a serious and imminent danger, it is possible that the disclosure of information relating to a health and safety breach or breach of some other legal obligation could protect the employee against
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dismissal under s.43 of the Employment Rights Act on the basis of making a protected disclosure or ‘whistleblowing’.
If an employee therefore reports to their employer that they believe the care home has not supplied adequate PPE or is failing to follow infection control guidelines, this could constitute whistleblowing, meaning they are protected. However, making such a disclosure would not necessarily justify their refusal to come to work.
HOW SHOULD EMPLOYERS HANDLE REFUSALS?
Start by discussing the employee’s concerns with them. If you are unable to put their mind at ease, you may wish to consider alternative options such as agreeing unpaid leave, redeploying to another department or annual leave rather than disciplinary action. Finding a mutually-agreeable solution will help to maintain employee relations and avoid the need for a lengthy formal procedure.
In all cases, ensure that the appropriate risk assessments have been undertaken and shared with staff. Oſten, acknowledging their concerns and demonstrating the control measures in place to protect them can give employees the reassurance they need to return. However, if you have exhausted all possible avenues and formal action is the desired approach, always seek advice first.
Ellis Whittam has created a Coronavirus Advice Hub on its website, containing free guides, checklists, sample letters and risk assessment templates, to help care sector leaders manage the employment and safety implications of COVID-19.
https://elliswhittam.com/
https://www.elliswhittam.com/covid-19/register?v=tomorrowscare - 23 -
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