What are your rights as an employee if your employer is forcing you to work in unsafe conditions?

The government has confirmed that employees may still attend their normal workplace where they are unable to work from home or where they are a key worker. Employers are encouraged be innovative in the ways in which their employees may work. However, we understand that for a number of employees this still means that they are required to attend their normal workplace despite the fact that this may mean that they are in close contact with other individuals.

During a pandemic, a business must keep itself and employees informed about related health risks, must ensure that there is good hygiene in the workplace and that working practices do not pose undue risks to employees. Such action should include:-

1. Reviewing system of hygiene to ensure that they provide appropriate protection (i.e. providing sanitising hand gel or hand wash).
2. Increasing the cleaning of hard surfaces in the workplace to provide guidance on hygiene risk and controls.
3. Provide appropriate, free of charge personal protective equipment (PPE) to employees following a risk assessment (i.e. face masks if appropriate depending on the nature of the work, hygiene materials, safety glasses, gloves etc.). If employers are unsure as to what PPE to provide, they should refer to the HSE guidelines.

Unsafe conditions

We are aware that many employees feel that they are not being provided with adequate protection during the present pandemic.

If this is an issue, we recommend that an employee shares their concerns with their employer to encourage an open dialogue regarding the situation at work. We suggest that employees provide these concerns in writing as this may be relied upon at a later stage should it become necessary to pursue a claim against the employer.

Employee’s options and associated risks

Work from home

The government has advised that business do all that they can to facilitate employees being able to work from home. If this is possible, this is likely to resolve any health and safety concerns.

Take responsibility and refuse to go into work due to a concern regarding health and safety

If the public health advice is that the employee is not in a vulnerable group, is not unwell or required to self-isolate and could reasonably be asked to continue to attend work, then it is possible that the employee may be investigated for misconduct due to their refusal to attend work. If the absence is unauthorised, it is likely that the employee would not be entitled to pay or statutory sick pay (SSP) due to their refusal to carry out work as instructed by their employer.

However, if the employee was dismissed as a result of the absence, it is likely that the employee would be able to claim for automatic unfair dismissal on health and safety grounds, or for ordinary unfair dismissal. A claim may be protracted due to a backlog in the tribunal and therefore this option may be unattractive.

Take annual leave or request unpaid leave

Employees are entitled to take statutory annual leave as an alternative to working, in accordance with their accrued allowance. A request for unpaid leave may also be made to the employer however this decision is ultimately up to the employer. This may temporarily resolve the issue whilst the employee’s health and safety concerns are considered by the business.

Furloughed worker

An employee may request that their status be changed to ‘furloughed worker’. This is akin to a lay off and would mean a temporary suspension for a specific period of time. During this time, the employee would not be able to carry out any work but will remain an employee and receive 80% of their pay. It is at the businesses’ discretion to accept the request.

Continue to attend work as normal

This would enable the employee to continue to be paid as normal however, due to the health and safety concerns, this may leave the employee at risk.

Vulnerable employees

Where an employee is vulnerable and has been advised to stay at home (i.e. for pregnant women, individuals over 70 and those with an underlying health condition), and is unable to carry out their work from home, an employer may face a claim for breach of contract of the implied term of mutual trust and confidence or a claim resulting in a claim for unfair dismissal or alternatively or in addition, a discrimination claim if they demand an employee is to come into work. This is the case even where adequate PPE is provided.

If you would like to discuss any employment related matter, please contact our HR Partner, Kate Brooks on 01202 525333 or kate.brooks@ellisjones.co.uk.