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Coronavirus – Employee Health and Safety Concerns

S44 and s100 Employment Rights Act 1996 protects employees against suffering detriment and dismissal in cases involving health and safety concerns. This legislation enables employees to raise concerns connected with their work which they reasonably believe are harmful or potentially harmful to health or safety. Further, this protection will apply if the employees leaves, proposes to leave, or refuses to return to work if they reasonably believe the danger to be serious and imminent which they could not reasonably be expected to avert.

What is Detriment?
The concept of detriment is broad enough to incorporate most forms of disadvantage suffered by the employee in these circumstances, including any financial or economic disadvantage (such as being paid less, or not at all), or being subjected to disciplinary proceedings. It is possible that the protection against detriment, and dismissal, in this context may be relevant in cases where:
• an employee chooses to self-isolate in circumstances where they are not required to do so, and the employer requires them to return to work. Provided that they genuinely and reasonably believed themselves to be in imminent and serious danger which they could not reasonably have been expected to avert (perhaps as a result of the employer’s poor management of an existing infection or contamination, or because colleagues were not following recommended hygiene guidelines and the employee was in a high risk category of contracting the disease), they could potentially be protected against disciplinary action the employer might decide to take against them for being absent from work, including any pay penalty incurred as a result of staying away from work; or
• a line manager takes steps to prevent the spread of the virus at work by sending home an individual who they reasonably believed posed a risk. Provided that the steps taken were appropriate with reference to all the circumstances including, in particular, the line manager’s knowledge and the facilities and advice available to them at the time, they would likewise potentially be protected against potential disciplinary, or other disadvantageous, action in the event of a dispute relating to the steps they took

This means that an employee is entitled to leave the workplace or refuse to go into the workplace if they believe that there is a ‘’real risk of serious and imminent danger’’ which they can't avert. Danger is not confined to physical features or arrangements in the workplace, they may arise out of the acts of another employee. It is important to note that it is the opinion of the employee that counts and not the employer. The appropriateness of the employee's steps is to be judged by all the circumstances, including their knowledge and the facilities and advice available to them at the time they made the decision.

Practical Issues
The Government has provided guidance to help employers to ensure workplaces are as safe as possible which requires them to carry out risk assessments and consult with the relevant employees. Further, employers are required to take significant measures to reduce the risks to employees in the workplace, such as social distancing, increasing the frequency of hand washing and surface cleaning, using screens or barriers to separate people from each other, staggering shifts and reducing the number of people each person has contact with by using ‘fixed teams or partnering’ (so each person works with only a few others).

However, if an employee doesn’t think that risks are being managed then they can use s44 Employment Rights Act 1996, but it is best to take legal advice beforehand and to inform the employer in writing of their decision and the basis of it. Further, it is also possible that a complaint that the workplace is unsafe could amount to a protected disclosure and so the employee would be protected against detriment and dismissal on grounds of that disclosure.

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