Since the Coronavirus pandemic, issues relating to health and safety in the workplace have taken on unprecedented importance. Employment practitioners at Nine St John Street are increasingly acting in claims with a health and safety related element.
Legal professionals predicted that health and safety claims would see a rise in the use of s44 and s100 of the Employment Rights Act 1996 (‘the Acts’).
There is relatively limited pre-pandemic case law on such provisions because such danger was a rarer occurrence for most employees, and any prior decisions have been in substantially different circumstances. This round up therefore draws out key themes from Employment Tribunal decisions that are now starting to be published on s44 and s100 claims that have arisen as a result of coronavirus. As they are so recent, they are at first instance and so may be subject to later developments in the higher courts. However, they provide helpful information about recurring themes and the ways in which they are being decided.
BRIEF RECAP OF THE LAW
The essential elements of the Acts are that
- Employees have the right not to be subject to detriments/deliberate failures to act/dismissal (detriments relate to s44, dismissals to s100) on the ground that
- 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 the employee EITHER
- Left/proposed to leave/refused to return to work (or a dangerous part thereof), while the danger persisted OR
- The employee took appropriate steps to protect himself or other persons from danger. Appropriate steps is judged in reference to all the circumstances
- All the circumstances includes his knowledge and the facilities and advice available to him at the time
- ‘Workers’ were not initially protected by these Acts. However, the Government has introduced an order to amend the acts to expand s44 (but not s100) to cover workers The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021, with a commencement date of 31st May 2021.
KEY THEMES FROM RECENT DECISIONS
• Reasonable belief in serious and imminent danger: relevance of government guidance
- It is likely that the courts will consider the contemporary guidance in place by the Government to determine whether the employee reasonably believed themselves to be in serious and imminent danger.
- In the recent case of Mr C Montanaro v Lansafe Ltd: 2203148/2020 the court held that recent government declarations were relevant but not determinative (para 101)
- Given that government guidance changed frequently and according to individual vulnerabilities and locality, it will be very important for representatives to ensure they are using the guidance that the employee had available at the time
• Reasonable belief in serious and imminent danger: consistency of the Claimant’s behaviour
- If the employee was willing to undertake activities of the same level or greater risk at a similar time to the relevant acts complained of, it may undermine the idea that the employee believed him/herself to be in serious and imminent danger
- A Claimant who can factually distinguish this particular risk from the others they were taking will be more likely to succeed on this point.
- For example, in the recent case of Mr M Ham v ESL BBSW Ltd: 1601260/2020, the Claimant was a delivery driver. Under government guidance he was allowed to travel for work and had been doing so. The Respondent challenged him on whether he could believe he was in serious and imminent danger from this particular delivery task when he had been quite happy to carry out previous delivery tasks.
- The Claimant in this case distinguished on the facts as he would be required in this case to deliver to someone who was self-isolating and the court found this to be different from the other assignments the Claimant undertook and clearly a serious and imminent risk.
• While the danger persisted
- An employee may meet the first criteria of reasonably believing themselves to be at serious and imminent risk. However, if the employer then takes this risk seriously and puts in measures to support him/her, the Claimant may lose the Claim if they continue to refuse to work unreasonably.
- If the employer ignores an employee’s valid concerns and stubbornly expects him/her to work regardless, the Claimant will continue to have good prospects of success.
- In both Mr M Ham v ESL BBSW Ltd: 1601260/2020 and Mr C Montanaro v Lansafe Ltd: 2203148/2020 the employer essentially ignored concerns of an employee who was willing to continue to work once their concerns had been addressed and proceeded straight to dismissal. Respondents were here unsuccessful. However, in Mr W Birch v Anchor Hanover Group: 1804897/2020 the employer offered multiple options for the employee to return to work which the employee refused to discuss. The Claimant was unsuccessful.
• Reason for dismissal/detriment: what if the Claimant behaves aggressively or unreasonably whilst expressing health concerns?
- As with other unfair dismissal/detriment cases the detriment or dismissal has to be on the grounds of (because of) act complained of, although it need not be the only reason.
- Because there can be multiple reasons for dismissal, even in circumstances where one of the reasons was the alleged aggressive or unreasonable behaviour of the Claimant, the Claimant could still be successful
- This will likely depend on whether the Claimant has been unreasonable or aggressive because of distress at the immediate danger they believe themselves to face, what sort of form their behaviour took and how long it lasted
- If an employee who raises their voice to their manager during a dispute about health and safety and is dismissed almost immediately, as per Mr M Ham v ESL BBSW Ltd: 1601260/2020 it will likely be held that dismissal was on the grounds of health and safety rather than conduct. However, if the employee’s behaviour is excessively unreasonable and goes on for a long period of time, the reason for dismissal may move away from being about health and safety and become more about refusing to engage/cooperate with the employer, as happened in Mr W Birch v Anchor Hanover Group: 1804897/2020
• The meaning of refusing to return to work
- One of the interesting questions emerging now that employees have much greater ability to work remotely is whether an employee carrying out his/her responsibilities from home can be considered to be refusing to return to work if they refuse to physically come into the office?
- The area will need to be explored in much greater detail in future cases and may depend on specific contractual terms and customs, however, the answer appears at the moment to be, not always.
- In Mr C Montanaro v Lansafe Ltd: 2203148/2020 the Claimant, who was in Italy at a time when guidance was implemented that travellers from Italy would have to quarantine for 14 days told his employer that he would continue to work remotely until he was given further instructions. The court held this was not refusing to return to work, partly because he was still working (remotely) and partly because he was only doing so until he received further instructions.
• Other tips and considerations from the early cases
- Be careful to read the specific requirements of the part of the act you are Claiming or Defending. For example, protecting others from danger only applies to taking appropriate steps to avoid danger, not to refusing to work, although it may be that you could argue refusing to return to work was an appropriate step in the circumstances.
- The coronavirus pandemic was a novel situation which caused a huge amount of stress to employers and employees alike. The tribunal appears to be somewhat sympathetic thus far in considering minor failings in communications or procedure from either employees or employers under stress. However, this argument will be more likely to succeed if behaviour was fleeting, attempts were made to rectify it and there are other strong points in the claim/defence.
CONCLUSIONS
The case law in this area is ongoing and is likely to develop in interesting ways, particularly when the appellate courts begin to decide the issues. Until then, remaining aware of recent decisions can give helpful indications about the sorts of points that will be in issue in a first instance tribunal case.
Isabel Baylis
June 2021