Should you stay or should you go? Thompsons’ Solicitors’ guide to returning to work

In light of those in England being encouraged to return to work, where they can’t work from home, many are now concerned about the impact this will have on their health, and the health of their loved ones.

But can those with health concerns refuse to go back to work if their employer says they should, or would this leave them at risk of being docked their pay or – worse yet – laid off altogether?

Rakesh Patel, head of employment rights strategy at Thompsons Solicitors, explains what an employee can do if they have concerns about returning to work.

“Thanks to the European Framework Directive on Safety and Health at Work 1989 – a significant milestone in protecting workers from harm – employees cannot be placed at a disadvantage should they choose to not work in the event of a ‘serious, imminent and unavoidable danger’. In the UK, these rights are found in section 44 Employment Rights Act 1996 (ERA).

“Where an employee reasonably believes that there are circumstances of danger which are ‘serious and imminent’, and which they could not reasonably be expected to avert, they can tell the employer that they plan to leave the workplace, actually leave (assuming that they don’t have permission to do so), or even refuse to attend work. Without doubt, exposure to coronavirus is serious – both for the individual and for those they come into contact with. 

“The emergency legislation enacted in the form of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 echoes Sections 44 ERA again citing the ‘serious and imminent’ threat: 

‘These Regulations are made in response to the serious and imminent threat to public health which is posed by the incidence and spread of [Coronavirus]’

“Similarly, if an employee believes they are in a situation that could cause them ‘serious and imminent’ danger, appropriate steps can be taken to protect themselves or their colleagues within the work environment. An example of this could be employees refusing to enter a particular part of a workplace, while continuing to work elsewhere on-site, if they deem this area safer.

“The Personal Protective Equipment at Work Regulations 1992 take this one step further. Employees may potentially be able to refuse to undertake specific duties that would bring them into contact with members of the public, unless adequate personal protective equipment – which could be anything from gloves and face masks to glass screens – was provided.

“Ultimately, if a worker reasonably believes that they face circumstances of ‘serious and imminent danger’ – either in their workplace or getting there (such as travelling on a crowded train) they may be entitled to refuse to work – or at least in that part of the place of work where the ‘serious and imminent danger’ persists. That applies even if the employer follows the government guidance, but is all the more likely to be applicable if it does not.”

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