Health and Safety in the Workplace during a Global Pandemic

Employers are grappling with the new normal as we slowly emerge from lockdown. This is an overview of employees’ rights and employer’s responsibilities regarding health and safety in the workplace and a section of the Employment Rights Act 1996 that has been waiting for its moment in the sun.

The Employment Rights Act 1996 requires employers to dismiss employees fairly.  In usual circumstances the right only applies when an employee has 2 years’ service, however there are certain circumstances where the right applies from the very first day of employment: a dismissal is automatically unfair where the reason, or principal reason, is one in which an employee is seeking to avoid or to protect themselves from imminent danger, perhaps the danger posed by a lack of adequate PPE and a deadly virus or a lack of adherence to social distancing or other measures designed to protect people from the coronavirus.  Employers should also bear in mind section 44 ERA 1996 which runs in parallel to section 100 and protects employees from detriment (rather than dismissal).

Section 100 ERA 1996 provides that:

“(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them.”

By virtue of section 108(3)(c), an employee can bring a claim under section 100 without having completed any period of continuous employment. Section 124(1A) disapplies the statutory cap on the compensatory award where a claimant is successful under section 100. However, the usual time-limit of 3 months to bring an unfair dismissal claim still applies in accordance with section 111.

This article will dissect and consider the applicability of section 100(1)(d) and (e) in relation to the situation caused by the Covid-19 pandemic.

Reason for dismissal

In practice, it may be difficult to attribute the reason, or principal reason, of a dismissal to section 100(1)(d) or (e). The coronavirus pandemic creates huge financial challenges for employers. It is well-established that if an employee is redundant due to a reduced requirement for employees, this constitutes a potentially fair reason for dismissal. It is crucial that the necessary link and proximity exists between the dismissal and paragraph (d) or (e).

The burden of proof is on the employer when it comes to determining the reason for a dismissal (Kuzel v Roche Products Limited [2008] EWCA Civ 380) but the employee can of course put forward their own suggestion. If the reason, or principal reason, is found to be neither of the reasons listed in section 100(1)(d) or (e) then the employee has no claim under those particular paragraphs. On the flipside, if section 100(1)(d) or (e) is the reason, or principal reason, for the dismissal then the dismissal will be automatically unfair, subject to section 100(2) and 100(3).

The classic definition of the reason for a dismissal was given in Abernethy v Mott, Hay and Anderson [1974] ICR 323:

“A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.”

In Royal Mail Limited v Jhuti [2019] UKSC 55, the Supreme Court considered the approach to deciding the reason, or principal reason, for a whistleblowing claim under section 103A, which was specifically said to “relate equally to the other sections in Part X in which the same words appear.” The Court confirmed that Parliament intended the legislation to cover the “real” reason for the dismissal, to be interpreted in the light of its context and purpose. The problem of identifying the reason should be approached “in a broad and reasonable way in accordance with industrial realities and common sense.”

A tribunal will be “concerned with the set of facts operating on the employer’s mind, but those facts, for section 100(1)(e) purposes, need only relate to the employee’s actions not his/her underlying reasons for those actions.” (B v J [2015] 5 WLUK 609) This is of equal application to section 100(1)(d).

In circumstances of danger which the employee reasonably believed to be serious and imminent

A common requirement is that there must have been circumstances of danger, which the employee reasonably believed to be serious and imminent. Therefore, there are 3 questions to be asked:

• Were there circumstances of danger?
• Did the employee believe the circumstances of danger were serious and imminent?
• Was the employee’s belief reasonable?

In Harvest Press Limited v McCaffrey [1999] IRLR 778, the EAT held that “the word danger is used without limitation in section 100(1)(d)… Parliament was likely to have intended those words to cover any danger however originating.” Such a broad approach could clearly encompass the danger posed by a potentially deadly and very infectious virus. Even if the virus is not within a workplace, in the sense of being carried, airborne or present on surfaces, the real risk should constitute a danger on this interpretation. That risk could also extend to the employee’s journey to their workplace.

An issue that arises is whether the circumstances of danger must relate to the health and safety of the employee. An employee may well assert that a serious and imminent danger existed because he was living with a vulnerable person who was shielding. It is submitted that where the employee is relying on danger to someone else, the claim should be made under section 100(1)(e), not (d). This is because section 100(1)(e) refers to “other persons”, words which must have been deliberately omitted from paragraph (d).

The second question listed above is, of course, an enquiry into the subjective mind of the employee. That enquiry will be conducted in the usual way. The particular reasons for the employee’s belief are not of the essence (Chatterjee v Newcastle Upon Tyne Hospitals NHS Trust [2019] 9 WLUK 556). The employer’s belief is irrelevant (Oudahar v Esporta Group Limited UKEAT/0566/10).

When it comes to the third question, the issues will relate to whether it was reasonable to believe that the circumstances of danger were “serious and imminent”. There may be more than one reasonable belief as to whether the danger associated with Covid-19 is both serious and imminent in the context of the particular facts of individual cases. What matters is whether the belief arrived at by the employee in question was reasonable.

As noted in Edwards v Secretary of State for Justice [2014] 7 WLUK 909, a tribunal has to “make findings as to what each Claimant actually believed, to decide whether that added up to a belief that there were circumstances of danger which were serious and imminent and to decide whether that belief was reasonable.”

There is limited authority on what “serious and imminent” means in section 100(1)(d) and (e). The words should be accorded their ordinary meaning, under the yardstick of reasonableness. The use of the two words together suggests that “serious” means the extent to which the danger will interfere with health and safety and “imminent” means the proximity of the danger. As such, an employee must reasonably believe that the danger represents a significant threat in the very near future. “Imminent” is not the same as “immediate” so the incubation period of Covid-19 should not be fatal to a claim. Indeed, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 state that they are introduced “in response to the serious and imminent threat to public health”.

Nevertheless, the reasonableness of the belief will be influenced by the danger relied upon by the employee and the specific circumstances of the case. For example, it will be relevant, subject to whether the claim is made under paragraph (d) or (e), if:

• the official advice is to maintain social distancing to a greater or lesser extent;
• the employee has an underlying health condition;
• the employee lives with someone who has an underlying health condition;
• the employee is pregnant;
• the employee is over 60;
• the employee has to handle goods which are handled by others;
• the employer has provided personal protective equipment;
• the employer has taken measures to enforce social distancing;
• the employer has taken measures to reduce the number of people at the workplace;
• the employer has taken measures to ensure employees are self-isolating in accordance with the government guidelines;
• the employer has taken measures to disinfect the workplace;
• lots of people frequent the workplace; and/or
• very few people frequent the workplace.

The answer to the question is accordingly highly fact-sensitive. But it seems that Covid-19 concerns could quite easily pass this hurdle, which is shared by both section 100(1)(d) and (e). In an unprecedented and global lockdown, a belief that the danger posed by Covid-19 is serious and imminent is likely to be reasonably held. Moreover, in Kerr v Nathan’s Wastesavers Limited EAT/91/95, the EAT stated, albeit in the context of section 100(1)(c), that “in considering what is reasonable, care should be taken not to place an onerous duty of enquiry on an employee”.

Section 100(1)(d)

Averting the danger

Under section 100(1)(d), the danger must be one which the employee “could not reasonably have been expected to avert”. By what is meant by “avert”, it is helpful to look at the Framework Directive (European Directive 89/391/EEC), which section 100 ERA 1996 gives effect to. Article 8(4) of that Directive provides that “workers who, in the event of serious, imminent and unavoidable danger, leave their workstation and/or a dangerous area may not be placed at any disadvantage because of their action and must be protected against any harmful and unjustified consequences, in accordance with national laws and/or practices.” The concern is therefore with “unavoidable danger”.

Again, the answer here will depend on the nuances of the employee’s situation and the measures taken by the employer. On a general view, however, it is unlikely that an employee could reasonably be expected to avert the danger caused by Covid-19 whilst remaining at his or her workplace. They might reasonably be expected to minimise the danger, such as by requesting to use personal protective equipment, but to avoid it altogether seems contrary to common sense and the concept of reasonableness.

Left (or proposed to leave) or (while the danger persisted) refused to return

The final element of paragraph (d) is that the reason, or principal reason, for the dismissal was that the employee “left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”. In short, where the rest of paragraph (d) is satisfied, an employee is entitled to:

• physically leave the workplace;
• communicate to their employer that they plan to leave the workplace; and/or
• refuse to return to the workplace, including any dangerous part, while the danger persists.

If the employee is dismissed due to any of the above then he or she will have been automatically unfairly dismissed.

Section 100(1)(e)

In Oudahar, the EAT laid out a two-stage test for cases falling within section 100(1)(e):

“Firstly, the Tribunal should consider whether the criteria set out in that provision have been met, as a matter of fact. Were there circumstances of danger which the employee reasonably believed to be serious and imminent? Did he take or propose to take appropriate steps to protect himself or other persons from the danger? Or did he take appropriate steps to communicate these circumstances to his employer by appropriate means? If these criteria are not satisfied, section 100(1)(e) is not engaged.

Secondly, if the criteria are made out, the Tribunal should then ask whether the employer’s sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, then the dismissal must be regarded as unfair.”

Took (or proposed to take) appropriate steps to protect himself or other persons

Section 100(1)(e) is not concerned with whether the employee could reasonably be expected to avert the danger. The provision is wider than paragraph (d). If the employee has a reasonable belief that the circumstances of danger are serious and imminent, they will be unfairly dismissed if the reason, or principal reason, for the dismissal is that “he took (or proposed to take) appropriate steps to protect himself or other persons from the danger”. This is, of course, subject to section 100(2) and (3).

It is important to note that in Balfour Kilpatrick Limited v Acheson [2003] IRLR 683, the EAT held that the words “or to communicate these circumstances by any appropriate means to the employer” should be inserted at the end of paragraph (e). This provision therefore protects an employee where they:

• take appropriate steps to protect themselves or other persons from the danger;
• communicate to their employer that they plan to take appropriate steps to protect themselves or other persons from the danger; and/or
• communicate the circumstances of danger by any appropriate means to the employer.

The EAT in Masiak v City Restaurants [1999] IRLR 780 made clear that the reference to “other persons” in section 100(1)(e) extends beyond other employees and includes members of the public. This broad interpretation is vital for employees where, for example, they live with a family member who has an underlying health condition. Given that the Deputy Chief Medical Officer has said that she “expects” the virus to spread around members of a household, the danger posed to those who are vulnerable in a particular household becomes acutely serious and imminent.

It is also the case that, as discussed above, section 100(1)(d) does not make reference to “other persons”, making paragraph (e) the more suitable provision to claim under where the employee is acting to protect someone else. However, it does not follow that an employee removing themselves from the workplace cannot fall within section 100(1)(e) because this is only specifically mentioned in section 100(1)(d). Such a course of action may well constitute “appropriate steps” within the meaning of that very broad phrase. There is similarly no reason why an employee could not claim under both paragraphs where he or she is taking steps in relation to their own health and safety as well as the health and safety of others.

It was acknowledged in Oudahar that an employee might be automatically unfairly dismissed even though they never communicated the danger to their employer. In response to this, the EAT said that “the likelihood that this would occur is vanishingly small provided that an employer carries out a reasonable investigation before dismissing. It would be rare indeed for an employee who had really taken steps to avert imminent danger to withhold that from his employer during an investigation. The closely circumscribed conditions set out in section 100(1)(e) coupled with section 100(2) and (3)provide ample protection to the employer.”

Section 100(2)

 Section 100(2) gives some helpful guidance on assessing whether the steps taken by an employee were “appropriate”. Such steps are “to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.” The employer’s opinion will again be irrelevant (Oudahar). It must be remembered that the circumstances of the steps taken by the employee include the necessary finding that he or she had a reasonable belief that a serious and imminent danger existed. It follows that a wide range of steps will be considered appropriate. This is with the ever-present caveat that the facts of each case will be determinative.

This very point was considered in Balfour in the context of an employee communicating circumstances of danger to his or her employer. The EAT commented that:

“There is something highly artificial about a contention that when drawing matters of serious and imminent concern to the employer, the employees must concern themselves with the appropriate route whereby that information is conveyed. In the practical world, we cannot believe that any employer would criticise an employee for informing him of imminent health and safety risks, whether directly or through any other means of communication… What we are clear about, however, is that an employee exercising his obligations under Article 13 of the Directive – and we emphasise that they are obligations – cannot conceivably be lawfully dismissed under English Law on that account.”

Section 100(3)

 Section 100(3) effectively gives an employer a defence to a claim under section 100(1)(e). This provides that the dismissal will not be unfair where “the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them.” This defence does not exist for section 100(1)(d).

Section 100(3) is not just a reflection of the requirement in section 100(1)(e) for the employee to take “appropriate” steps. The test that the employer has to meet under subsection 3 is that those steps, or proposed steps, were “so negligent” that a reasonable employer “might” have dismissed the employee. Mere inappropriate steps will not be enough. The test is a rather high one where the employee must reasonably believe in serious and imminent danger.

There is somewhat of a tension between section 100(3) and section 100(1)(e). The section 100(3) defence applies where the reason for the dismissal is that specified in section 100(1)(e). However, it is hard to see how “appropriate steps” could be taken or proposed if those steps are “so negligent” that the employee might reasonably be dismissed. Put another way, section 100(3) only comes into play where section 100(1)(e) is made out. Section 100(1)(e) can only be made out where the steps taken or proposed are “appropriate”. If a tribunal finds that the steps were “appropriate”, how can an employer argue that they were negligent enough to justify dismissal?

It is suggested that what section 100(3) does is exculpate the employer from a finding of an automatically unfair dismissal where the steps taken or proposed by the employee were sufficient to justify a dismissal, notwithstanding a reasonable belief in a serious and imminent danger. In practice, this may mean the employer complying with the jurisprudence under section 98(2)(b) and (4), for a reasonable employer would only dismiss in such circumstances.

The concept of negligence indicates that the employee has, or would have, acted below a reasonable standard of care. In the context of Covid-19, an example might be an employee who takes more personal protective equipment than has been allocated to him, leaving other employees short. Nevertheless, the constant theme remains that the particular facts will be paramount. Section 100(3) may also play a greater role in respect of NHS and other key workers. In their case, it is much more likely that refusing to turn up to work or taking extreme steps will be deemed negligent.

Conclusion

The situation created by the coronavirus pandemic is extraordinary. The threat of an infectious, indefatigable and invisible killer undoubtedly permeates into the health and safety of the UK workforce. Section 100(1)(d) and (e) ERA 1996 provide particular protection for employees who are concerned for health and safety and take action. Where either paragraph is satisfied, a dismissal will be automatically unfair. There is no limit to the compensation that can be claimed thereafter. It is apparent that the as yet untested legal framework is capable of accommodating the novel situation we now face. Nonetheless, further case law and guidance is inevitable and will be welcome. The key point is that the legislative provisions are fact-sensitive. As is always the case, employers and employees alike should consider their position carefully and strive to deal with it reasonably and appropriately.

This article on Health and Safety in the Workplace during a Global Pandemic was written by Heather Platt and Oliver Foy, if you’d like any further information on either counsel please contact Dean Cunniff on 020 7353 0711 or via email.