With Covid-19 rates falling, and the large-scale roll out of Coronavirus vaccinations, companies may once again decide that their employees are asked to return to office working, where they had been working from home before. This may be a scary thought for some, so this article will examine what your rights are if you have health and safety concerns about returning to work.

Health and Safety Concerns

Under ss44 and 100 of the Employment Rights Act 1996, an employee is protected from suffering detrimental treatment from their employer based on a number of grounds, including:

1. Raising health and safety concerns through reasonable means.
2. Leaving or staying away form a dangerous workplace.
3. Taking action to prevent danger.

Effectively, if an employee decides to refuse to return to work, or raises health and safety concerns to their employer, then that employer cannot dismiss or treat the employee detrimentally because of this. If an employee is dismissed on these grounds, then this will be automatically unfair, and the employer could be liable to pay the employee compensation.

For an employer to be in breach of the law, several factors must be present:

1. An employee believes that there is serious and imminent danger to their health and safety,
2. This belief is genuine and reasonable,
3. The employee has taken appropriate steps to avert this danger,
4. The employer has treated the employee detrimentally or dismissed them on these grounds.

The reasonableness of the employee’s belief will depend on the circumstances surrounding their particular case. For example, it would be reasonable for an employee with underlying health conditions to have more concerns for their safety than an employee without such a condition.

There have not been any decisions made by the courts as to whether Covid-19 would fall under health and safety concerns, but it is known that the courts tend to adopt a wide interpretation of health and safety. Coronavirus is likely to fall under these provisions should the issue come before a Tribunal, especially as the Employment Appeals Tribunal have noted that the word danger in s100 covers ‘any danger however originating’[1].

The employer has a duty to take all reasonable measures necessary to protect their employee’s health and safety. Such measures could include requiring masks to be worn, social distancing, sanitisation stations or staggering shifts taken at the office. If an employer has taken these steps and the employee knows this, it is less likely that the court will deem the employee’s belief of danger to be reasonable. If steps have been taken, but the employee does not know this, then their belief could still be reasonable as their belief only needs to be genuine, not necessarily correct.

For the time being, it is necessary to exercise some caution when evaluating the merits of Covid-19 health and safety claims as there have been no authoritative clarifications on this area of law. We recommend that all employees and employers seek legal advice before taking any steps towards making a claim.

Stella Maris Solicitors LLP are an expert legal team based in Swindon. If you are worried about your health and safety when returning to work, do not hesitate to contact us so that we can help you put your mind at ease. Telephone 01793 296118 or email mail@stellamarissolicitorsllp.co.uk.

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[1] Harvest Press Ltd v McCaffrey [1999] IRLR 778, EAT