The majority of our members are at home in light of the current lockdown measures. However we have been contacted by some members who are concerned for their own safety and that of vulnerable family members if they are called to return to work in the workplace. We have been asked if members can refuse to return to work in these circumstances.
The purpose of this briefing is to provide general information about the protections which the law provides to employees who refuse to work in certain circumstances. Before going any further, we should make one thing absolutely clear:
This briefing provides general information about statutory rights which are available to all employees in the UK. We are NOT advising you to do, or refrain from doing, anything.
If you have a particular concern about your situation at work please seek advice in the first instance from your branch.
Public health advice
The latest public health advice explains:
If you have symptoms of coronavirus infection (COVID-19), however mild, stay at home and do not leave your house for 7 days from when your symptoms started.
If you live with others and you are the first in the household to have symptoms of coronavirus, then you must stay at home for 7 days, but all other household members who remain well must stay at home and not leave the house for 14 days. The 14-day period starts from the day when the first person in the house became ill.
If you live with others and you or one of them have symptoms that may be caused by coronavirus (COVID-19), then household members must stay at home and not leave your house for 14 days (more information in the ending self-isolation section below). If possible, you should not go out even to buy food or other essentials, and any exercise should be taken within your home. The 14-day period starts from the day when the first person in your house became ill.
Government advice - lockdown
On 23 March, 2020, the prime minister, Boris Johnson, issued a stark call for people to stay at home. Great Britain was officially in “lockdown”. That call applies to all workers, with the exception of those regarded as “essential”. Specifically the PM gave the following instruction to the British people:
“From this evening I must give the British people a very simple instruction – you must stay at home. Because the critical thing we must do is stop the disease spreading between households. That is why people will only be allowed to leave their home for the following very limited purposes: -shopping for basic necessities, as infrequently as possible -one form of exercise a day – for example a run, walk, or cycle – alone or with members of your household; -any medical need, to provide care or to help a vulnerable person; -and travelling to and from work, but only where this is absolutely necessary and cannot be done from home.”
Government advice - working
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, SI 2020/350, explain that they were made “in response to the serious and imminent threat to public health” posed by coronavirus.
Certain businesses are not permitted to remain open during the current pandemic. The guidance issued to other employers not included within that list is as follows: “Other businesses can remain open and their employees can travel to work, provided they cannot work from home.”
We are aware of employers requiring members to remain in the workplaces or are being forced back to workplaces having been initially sent home. It is arguable that where employees have been permitted to work from home, an instruction to physically attend the workplace goes against published government guidance which employees are entitled to follow.
Does the law provide protection to employees in these circumstances?
EU legislation provides health and safety protection to workers. Specifically, Article 8(4) of the Framework Directive 89/391/EEC provides:
“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.”
This protection has been enacted into UK law by Sections 44 and 100 of the Employment Rights Act 1996 (ERA) which make it unlawful for an employer to dismiss someone, select them for redundancy or subject them to any other detriment in certain circumstances. There is no qualifying period of employment for these protections, but they are restricted to employees, not workers. Consequently, these protections may not apply to contract workers, although the law on agency worker rights is complicated.
These rights should be read together with other rights emanating in EU law. Under the Personal Protective Equipment at Work Regulations 1992, implementing the PPE Directive 89/656, every employer “shall” ensure that suitable personal protective equipment is provided to their employees who may be exposed to “a risk to their health or safety while at work" except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective (Regulation 4(1)). This generates issues in relation to coronavirus such as: have employers undertaken appropriate risk assessments in relation to each work establishment (as opposed to a one-size fits all risk assessment)? Do their employees have access to adequate PPE given the short supply of face masks, gloves, and hand sanitiser? In the present pandemic, employees could potentially refuse to undertake specific duties where this would bring them into contact with other persons or members of the public unless adequate PPE was provided.
Grounds for protection (Section 44 ERA)
These protections apply to employees is in either of the following situations:
- In circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, they left (or proposed to leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of their place of work (Sections 44 (1) (d) and 100 (1) (d) ERA); and
- In circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or other persons from the danger (Section 44 (1) (e) and 100 (1) (e) ERA).
Serious and imminent
The key to these protections is that the danger must be “serious and imminent”. The seriousness of exposure to coronavirus might well be informed by the particular circumstances of the individual, including whether they or someone within their household is considered to be vulnerable or otherwise at heightened risk. The advice from the government is certainly that exposure to coronavirus is serious – both for the individual and those they come into contact with. However analysed, these sorts of concerns are fortified by the day through ministerial statements all to the same effect, justifying the necessity of a nationwide lockdown and telling people to stay at home
The ”other persons” in Section 44 (1) (e) are not limited to work colleagues but could include family members or even members of the public. In any case, the NHS has specifically warned that “Coronavirus can make anyone seriously ill”.
The extent to which the danger is “imminent” is also going to be fact-specific, but it is worth noting that we are currently in the midst of a pandemic in which the entire population has been instructed by the government to stay at home, save for certain limited exceptions. As outlined above, it is significant that the emergency legislation enacted in the form of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 uses similar wording which features in Sections 44 and 100 – it begins with the statement: ”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]."
It does not matter whether the employer disagrees with the employee’s assessment of ”serious and imminent”: as long as the employee’s belief is a reasonable one then it qualifies for protection.
As is outlined above, provided that the belief is reasonable, it is a matter for each employee’s subjective belief as to whether being required to attend workplaces them or others at “serious and imminent”. This is the case even where the employer disagrees with that assessment. Those subjective beliefs are likely to be informed by context and arrangements put in place by the employer to minimise the risk.
Where members have to commute to work using public transport, they may have a different perception as to whether they are exposed to serious and imminent danger compared with someone who commutes to work by car and has suitable onsite parking facilities. By way of example, Transport for London has the following advice on its website “Stay home - don't travel unless essential. Making non-essential journeys risks lives.” The London Transport Commissioner Mike Brown issued the following stark message to people living in London: “…My message remains simple: the threat you pose to London when you make an unnecessary journey is real. No one should be travelling unless you are a critical worker making an absolutely essential journey.”
PCS has made representations to the Cabinet Office that attendance at the workplace should only be required where it is truly essential and that it should be on a voluntary basis (rather than by compulsion). Where it is possible for individuals to work from home, we have argued that this should continue during the current phase of the pandemic.
PCS has also requested that for those who attend work, suitable PPE is provided to every individual, including facemasks, gloves, and the provision of hand sanitiser. Social distancing protocols also need to be in place.
We have also raised the need for systematic cleaning arrangements to be put in place so as to minimise or reduce the risk of exposure (e.g. regular cleaning of door handles, elevator buttons and the like), and the need for risk assessments to be put in place in respect of each individual workplace.
It is likely to be relevant to assessing the reasonableness of an employee’s set of beliefs as to whether their employer has taken sufficient steps in relation to these protective measures which are covered by the PPE regulations, and arguably also form part of the employer’s contractual obligation to provide a safe place and a safe system of work. It would be prudent for an employee who is instructed to attend work to ask for details of what PPE they will be provided with.
To qualify for protection, the employee needs only to fall within Section 44(1)((d) or (e) – there is no requirement to fulfil both conditions.
The ”appropriate steps” referred to in Section 44 (1) (e) are not defined but, in certain circumstances, might include refusing to attend work. The appropriateness of the steps taken is judged by reference to all the circumstances, including the employee’s knowledge of the facts, as well as the facilities and the advice available to them at the time. An important exception to this is where the steps taken by the employee amount to negligence, for which the employer might legitimately sanction or dismiss them in which case these protections would not apply.
The law does provide protection to employees, in circumstances where they can bring themselves within the grounds for protection. If you are concerned, seek advice from your branch.
As explained above, the purpose of this briefing is to provide members with information as to their rights and protections. PCS is not instructing or encouraging members to do anything or to refrain from doing anything. The rights exist to give individual members the right to make individual choices.
Where an employee does not attend work when instructed to do so, it is best practice to email their line manager or department to explain that they will be absent and the reasons for the absence.