Covid-19: Critical workers refusing work - What if everyone is being reasonable?
Schona Jolly QC
Employers are making difficult choices at this time in situations which have never affected their workplaces before. As fresh guidance is issued and new headlines emerge, the next legal queries evolve. This blog bySchona Jolly QC is the first of a series which examines the interplay between the workplace and the coronavirus.Itexplores the employment law implications for employees and employers in critical sectors, such as public health and social care, when individuals are needed in their workplaces, but are terrified of the dangers to which they might be exposed during the COVID-19 pandemic.
Two days after the government announced a soft lockdown in response to the worsening COVID-19 crisis, people working within the critical sectors, such as public health and social care, are facing difficult, practical issues on the ground which the current state of employment law cannot resolve satisfactorily. The rules and norms of our employment law are not set up to deal with this pandemic, but employees and employers alike need urgent advice.
One question which employment lawyers arebeing inundated with arises from the considerable confusion around who must andwho may stay away from the workplace. In particular, the degree of challengefor key workers and their employers across critical sectors such as publichealth, is not to be understated. The growing need for doctors, nurses and thewide variety of support staff highlights the difficulty posed by the crisis:Britain needs its medical services at full capacity, but what happens whenemployees across the spectrum of services lack confidence in their employer’sability to protect them from the virus, or from becoming carriers of the virusto those with whom they live? Amidst the global panic, it is hardly surprisingthat many people required to go out to work are reasonably fearful and confused,both in respect of coronavirus itself as well as the rapidly changing, butstill limited, government guidance. This is not to underestimate the scale ofthe task before government, but to highlight the practical difficulties whichclients are realising on the ground. This article concentrates particularly onthe difficulties posed in essential services across critical sectors,presupposing both a bona fide employee, who is not self-isolating, and awell-intentioned employer.
Health and safety of employees hassuddenly become a widespread and complex problem. Evidently, many employees whowould otherwise be required to attend critical work are absent throughself-isolation or illness. The positionfor employees who display symptoms or who live with someone with symptoms ofcoronavirus is dealt with through the new Statutory Sick Pay provisions whichpermit flexibility and immediate coverage, so that SSP can be paid from day 1, rather than day 4, of any absence from work relatingto self-isolation.[1]
The position for employees who areotherwise fit and safe to attend their workplace is far more difficult.Concerns about health and safety may relate both to the journey to work, whichfor those who cannot avoid public transport, is fraught with danger, and of theworkplace itself. For those exposed to patients or other staff who have or arelikely to have been exposed to coronavirus, the threat is real and of seriousconcern. Yet, critical services across a spectrum - including GP and communityclinics, social services, schools and hospitals, to name but a few – wouldgrind to a halt if those critical employees stopped attending work. Theconsequences of non-availability of essential staff, be they telephonists,cleaners or salaried GPs, damages the employer’s (and government’s) ability torespond to the national crisis, and to that of their local communities in need. But what happens when an employee who isnot self-isolating or absent due to ill-health and who is fearful for theirhealth or becoming a carrier for the virus, refuses to attend their place ofwork?
The latest government Guidance forEmployers and Business (23 March 2020[2])states “if you cannot work from home then you canstill travel to work, provided you are well and neither you nor any of yourhousehold are self-isolating.”
“Employers who have people in their offices or onsite shouldensure that employees are able to follow Public Health England guidelines including, where possible, maintaining a 2 metre distance from others,and washing their hands with soap and water often for at least 20 seconds (orusing hand sanitiser gel if soap and water is not available).”
Public Health England guidance (dated 24March 2020) states:
“Ifa member of staff has helped someone who was taken unwell with a new,continuous cough or a high temperature, they do not need to go home unless theydevelop symptoms themselves. They should wash their hands thoroughly for 20seconds after any contact with someone who is unwell with symptoms consistentwith coronavirus infection.
Itis not necessary to close the business or workplace or send any staff home,unless government policy changes.”
Even though the guidance appears to beclear, should that be enough to allay concerns about safety of the workplace? Isit reasonable for the employee still to feel for their safety? Employees mayfeel concerned that the speed at which the guidance has changed maynevertheless put them at risk. For example, whereas until very recently,self-isolation was being recommended if you had come into such contact withsomeone who had coronavirus, self-isolationnow is only necessary if either you or someone you live with shows symptoms ofcoronavirus[3]. So just last week, if employees had come intocontact with anyone else, such as a patient or colleague who had testedpositive or had symptoms, they would have been required to self-isolate,whereas that is no longer the official advice. They are therefore required toattend work, but if they know they will be exposed to a patient, or fearexposure notwithstanding the deep cleaning guidance, for example, can theysimply refuse? Similarly, for an employee who cannot avoid crowded publictransport to get to work, they may worry that they are risking their own healthand that of their colleagues, or patients, by coming to work at all in thatmanner.
The urgent measures taken by governmentthrough the emergency furlough system, whilst hugely necessary and welcome, donot seem able to fill the obvious consequences of these type of scenarios. TheEmployment Rights Act 1996, as amended (“ERA”), is not equipped for the scaleof the crisis at hand. Whilst provision is made for employees to claim thatthey have been unlawfully subjected to a detriment on health and safetygrounds, or for automatic unfair dismissal, the provisions remain unclear anduntested in these circumstances, resulting in a lack of certainty on both sides.
By s.44(1)(d) and s.100(1)(d) ERA,employees have the right not to be subjected to any detriment by any act, orany deliberate failure to act by their employer and the right not to bedismissed on the ground that “in circumstances of danger which the employee reasonablybelieved to be serious and imminent and which he could not reasonably have beenexpected to avert, he left (or proposed to leave) or (while the dangerpersisted) refused to return to his place of work or any dangerous part of hisplace of work”. Similarly, s.44(1)(e) and s.100(1)(e) provide some protectionfor employees where, “in circumstances of danger which the employee reasonablybelieved to be serious and imminent, he took (or proposed to take) appropriatesteps to protect himself or other persons from the danger.”
Each of these sets of provisions requiresa ‘”reasonable belief” and a danger which is “serious and imminent”. No doubtin due course, these concepts will be litigated with respect to their COVID-19 interpretation.Current case law suggests these concepts will be broadly interpreted. In Harvest Press v McCAffrey [1999]IRLR 778, the EAT agreed with the employment tribunal who considered that theword ‘danger’ was used without limitation in s.100(1)(d) and that Parliamentwas likely to have intended those words to cover any danger howeveroriginating. By contrast, in Akintola v Capita Symonds Ltd [2010] EWCA 405, theCourt of Appeal found that it had been open to an employment tribunal to findthat the Appellant, who was a senior structural engineer and who had beeninstructed to provide structural advice on a tunnel at Marble Arch tubestation, did not have a reasonable belief that he was in circumstances ofserious and imminent danger when he had been expected to enter a tunnel througha manhole. On the facts, the tribunal had found that he had been unable toprove that there was a serious or imminent danger, bearing in mind theexistence of a method statement and that the owner council had sent in aspecialist team to undertake all the necessary monitoring before anybody elsehad been allowed to enter the tunnel.
It doesnot take a leap of imagination to consider that the current circumstances maywell meet both the reasonable belief threshold of serious and imminent danger,at least in respect of the workplace. But is that true where the employer isfollowing and complying Public Health England Guidelines on safety during thepandemic? Is that fear of imminent and serious danger reasonable incircumstances where all government guidance, including on social distancing, isbeing followed? This will include not only the provision of appropriatePersonal Protective Equipment (assuming they have done this – which in thecurrent circumstances is unclear), but also through the maintenance and pursuitof appropriate cleaning methods. Thus, in the NHS context, the Public HealthEngland: Interim Guidance for Primary Care[4]guidance, dated 19 March 2020, states that:
“Once a possible case has been transferred from theprimary care premises, the room where the patient was placed should not be used,the room door should remain shut, with windows opened and the air conditioningswitched off until it has been cleaned with detergent and disinfectant. Oncethis process has been completed, the room can be put back in use immediately.”
If that is all complied with properly, a criticalwork employer asking their employee to return to that room or place of work is arguablylikely to be issuing a reasonable instruction. What of the crowded publictransport dilemma? Would the broad interpretation of ‘danger’ extend to thecircumstances of arrival, and potential carrying the virus to others, by virtueof having been in close contact with the public? Given the lockdown, it is hardto imagine that such a fear would be unreasonable, but would such a broad interpretationbe given?
So, in essence, we may find ourselvesextraordinarily in the situation where the employer’s instruction is likely tobe reasonable, and the employee’s refusal to attend the place of work fearingserious and imminent danger may also be reasonable. In employment law terms,that leaves both decent employers and fearful employees with difficultquestions about what steps they take in such circumstances. If an impasse isreached, both sides need a solution.
At the time of writing, the detail of theJob Retention Scheme is not yet available. Whilst clearly necessary andwelcome, the government’s emergency measures do not provide enough answers tothese practical problems yet. ‘Furloughing’ essential key worker staff does notresolve the employer’s need (and indeed the national need) to retain criticalstaff in critical workplaces. Its all-or-nothing approach to work also reducesthe potential for employers to seek to retain staff for some portion of theirworking time. Moreover, critical employees cannot be replaced at whim,especially with the population in lockdown and fearful, and when faced with theurgent need for those employees now. Moreover, furloughing those staff islikely to prevent them being redeployed elsewhere. This is without going intothe present difficulties associated with the technical reality that mostemployment contracts in the UK do not contain a furlough provision.
Marching down the misconduct/disciplinaryroute may result in a health and safety detriment or dismissal, pursuantto s.44 or s.100 ERA, but even if it is legitimate to do so (and there arecircumstances where it may be), it is not likely to resolve the issue forcritical employees or employers in public health or social care. The employerneeds their staff available to work and discipline will neither create goodwill nor good relations in struggling workplaces, which will barely have thetime to cope with the disciplinary processes in any event. There may come apoint where there are no alternatives, but there would be good sense for allparties to avoid escalating drama at this crisis time.
None of these are ideal situations, andall of them leave both the fearful key worker employee and the decent employerexposed, in practical, financial and/or legal terms. Solutions may need to befound on an ad hoc basis, perhaps relating to unpaid leave or annual leave, andagreed as best possible between all sides.
The complexities do not end there,however. There are also multiple associated issues, including reasonableadjustments arising from disability, or particular requirements for pregnant,disabled or vulnerable workers. No equality impact assessments were availableat the time of writing associated with the Coronavirus Act 2020. There aremultiple equality challenges which will arise in these unprecedented times. Boththe ERA whistleblowing provisions and arguments about the broader human rightto health are likely to be engaged.
And none of this begins to touch on thealtogether different problem relating to the notionally self-employed ‘limb b’workers or agency workers who may face very similar dilemmas, often workingcheek by jowl with employees doing the same or similar work, but without any ofthe already inadequate safety nets that employees have.
The scale of the challenges beforegovernment is unprecedented. At the time of writing, the details of the JobRetention Scheme are not yet available. But, in full recognition of the realityof ironing out complex problems in days rather than months, it is hoped thatgovernment is listening to the complexity of problems being faced by employeeswho need work and employers who need employees. It seems emergency employment legislationis necessary, failing which the very clearest of guidance.
Cloisters barristers areavailable to discuss the many issues arising in the current COVID-19 crisis.Please contact us through our clerks in the usual way.
[1]https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-guidance-for-employees
[2]https://www.gov.uk/government/publications/full-guidance-on-staying-at-home-and-away-from-others/full-guidance-on-staying-at-home-and-away-from-others#going-to-work
[3]https://www.nhs.uk/conditions/coronavirus-covid-19/self-isolation-advice/
[4]https://www.gov.uk/government/publications/wn-cov-guidance-for-primary-care/wn-cov-interim-guidance-for-primary-care