This post has been contributed by Dr Ewan McGaughey, Module Convenor in Labour law in global context.
Do you have to go to work in the covid-19 pandemic? And do you have a right to not suffer any detriment, dismissal or disadvantage if you refuse? These questions matter hugely for people in the UK, Europe and across the world as the pandemic continues to surge and spread, and the cases, illness and death tolls mount. Many workplaces that use offices have moved online and people work at home, while others such as shops, or factories can only be done physically. In those cases, many workplaces have been forced to close during lockdowns – such as pubs, restaurants, or retail stores – while others have continued with extra safety protection.
This presents important issues of fairness between workplaces, and in protecting the most vulnerable workers. We cannot close hospitals, food production, supermarkets, or essential transport infrastructure, and yet this means some people will be exposed to greater risk. What is the right approach?
The UK government guidance has said that ‘office workers who can work from home should do so. Anyone else who cannot work from home should go to their place of work.’ But how does this square with the law?
The Employment Rights Act 1996 section 44(1) says that an ‘employee has the right not to be subjected to any detriment by any act… by his employer’ if there is (d) ‘danger which the employee reasonably believed to be serious and imminent’ and he ‘refused to return to his place of work’. Further, an employee can (e) take ‘appropriate steps to protect… other persons from the danger’. Section 100 makes dismissal of employees on the same ground automatically unfair. This section was introduced to follow the Health and Safety Directive 89/391/EEC article 8(4), and the ILO Health and Safety Convention (c 155) article 13. It is an essential part of the universal right to ‘Safe and healthy working conditions’: International Covenant on Economic, Social and Cultural Rights 1966 article 7(b).
But what does it mean, and does it apply to the pandemic? When has an ‘employee reasonably believed’ there to be a ‘danger’ that is ‘serious and imminent’? Can you refuse to work in a normal workplace during covid-19, even if an employer has provided masks, and tries to disinfect the workplace?
On its face, the answer is clear. The World Health Organisation is clear that we are in a global pandemic, and the statistics are clear that people have a high risk of death, particularly if they are old or have pre-existing respiratory or heart conditions. If people do not risk death, there is a danger of getting seriously ill, with fever, coughing, loss of smell or many other problems. Nobody can be forced against their will to get sick. It follows that, on the face of it, everyone has the fundamental right to refuse to work in the pandemic, and cannot be dismissed, or subject to detriment for keeping themselves or others safe.
The UK case law supports this analysis. For example, in Edwards v Secretary of State for Justice, a group of prison officers succeeded in an appeal that they had reasonably believed it was dangerous to go to work at HMP Dartmoor, when snow on the road up had led the road to be closed. It is also reasonable to be concerned about other people’s health being affected by spreading the pandemic. For example, in Masiak v City Restaurants (UK) Ltd, it was accepted that a chef potentially had a good claim for refusing to serve chicken that he believed was unfit for human consumption: if those facts were made out, he could claim he was automatically unfairly dismissed.
By contrast, in Hamilton v Solomon and WU Ltd, HHJ Stacey held that an employee did not reasonably believe he was in danger after he complained about wood dust, despite being given a suitable face mask. The danger of dust in Hamilton, of course, differs from the deadly covid-19 pandemic which can only be partially be stopped by face masks. Furthermore, unlike sawdust, covid-19 at the time of writing has officially killed 46,853 people in the UK, and 1.2 million people worldwide.
This presents a difficulty for public policy: if a judge decides that a person has the right to be subject to no detriment in one workplace, this may be similar in others. (Of course, some workplaces will be inherently more risky, depending on how many people they are in contact with, or how people get to work.) No judge will want to rule that all workplaces should shut down against the policy of Parliament or the elected government.
The proper approach is to be honest with everyone, and protect those workers who are most at risk, by redeploying staff, not making anyone redundant. For any job that can be done remotely, it should be. For jobs that cannot (like at hospitals, supermarkets, buses) staff need to told that they are needed: the vast majority of people will willingly accept the risks, because they know their jobs are essential. This has already been seen in the countless, selfless acts of bravery, and compassion every day across our hospitals, care homes, public services, and essential businesses. The main point is that every employer should be honest and protect its workforce, and none should let staff go who reasonably think they cannot take the risks. In the meantime, if we work together, there will soon be a vaccine, and a return to a better life.