Every employment contract contains an implied term that the employer will take reasonable steps to ensure the safety of their employees. If an employer fails to take care of its employees’ safety during the pandemic, employees may be able to resign and claim constructive dismissal on the basis of a fundamental breach of that term.
Employees do not need to have two years’ service to bring a claim in this respect.
Prior to the coronavirus pandemic, employment disputes based on health and safety in which employees refuse to work because of ‘danger’ have always been relatively rare.
In order to peruse a claim in this respect an employee has to prove the ‘danger’ in the workplace is likely to be “serious and imminent”.
It appears that Covid-19 is likely fall under this definition.
As long as the virus remains prevalent and no vaccine has been found, each and every workplace is potentially an environment in which there is a serious danger for employees, especially those that are older or vulnerable.
Example 1:
An employee who is currently working in a warehouse “reasonably believes” a colleague who was coughing and looking dreadful has coronavirus. They tell their employer they are going home as they believe they are at risk of catching Covid-19.
If the employee who goes home is then subjected to a detriment (dismissed or disciplined for failing to turn up for work) that is enough for that employee to potentially pursue a claim.
Example 2:
Consider a situation whereby an employee refuses to work unless an N95 face mask is provided as they reasonably consider that there is a serious and imminent risk of catching Covid-19 at work.
The employer refuses (or is simply unable) to provide the masks and refusing to attend the workplace is considered a reasonable action due to the risks. If the employee is furloughed on 80% of their salary, the reduction in pay is likely to count as a detriment on grounds of health and safety, entitling the employee to resign and claim compensation in a Tribunal.
We don’t know how the tribunals will respond
The question for the Tribunal will be whether the employee had a ‘reasonable belief’ that the danger posed by Coronavirus was serious and imminent. If the employee “reasonably believed” they were at risk, it doesn’t matter what the employer thought or what the employer did.
For health and safety dismissals (which includes employees resigning and claiming constructive dismissal):
- there is no length of service requirements – An employee can bring a claim with only a month’s service.
- Compensation is uncapped
- The employee could include a claim for injury to feelings.
Therefore whilst employers may have good intentions at heart in furloughing staff who have raised issues of health and safety, this may end up massively backfiring on them.
We are likely to see a number of ET claims come out of this from not only employees but also workers.
Once lockdown is over
It is possible we will see a very slow phased return to work.
Some employees may feel uncomfortable returning to the office if there are too many people there and they feel there is still a risk of catching Covid-19. If this is a “reasonable belief”, employers must not ignore or dismiss the employee’s views.
