Employment Law Updates

Posted on: 9 June 2020

Safe workplaces and the commute to work – how far does section 44 of the Employment Rights Act 1996 go?

by Angelica Rokad

On 11 May 2020, the Government published practical Guidance[1] in a bid to encourage workplaces to be made as safe as possible for returning employees during the Covid-19 pandemic. Whilst the Guidance has been developed in consultation with unions and industry bodies, there still exists the very real possibility that employees do not have sufficient confidence that their workplaces are, in fact, ‘Covid-19 secure’ and consider that by returning, they have been subjected to a detriment by their employer.

What recourse is open to these concerned employees? One potential avenue lies with section 44 of the Employment Rights Act 1996 (‘ERA 1996’) under which there exists the right not to be subjected to a detriment arising from a deliberate failure to act, or any act, by an employer on specified grounds, relating to health and safety. Such claims rarely appear before Employment Tribunals. However, the recent Presidential Guidance[2] has hinted that, as a result of the global pandemic, an increase in these types of claims is expected – and will be prioritised. Employers would, therefore, be well advised to take these claims seriously. Unlike other employment claims which are subject to statutory caps and require employees to have minimum qualifying periods of service, a claim under section 44 of the ERA 1996 is a “day one” right and is not subject to any limit on the level of financial compensation.

Two of the specified grounds which are most likely to be of use to employees who seek to pursue Covid-19 related detriments are found in section 44 (1)(d) and (e) of the ERA 1996. Under those subsections, an employee may refuse to return to a place of work or take appropriate steps to protect themselves or others at work, if they can go on to establish that: (i) the danger is both serious and imminent; (ii) one which they could not reasonably be expected to avert and (iii) that their belief in that regard is both genuine and reasonable.

Traditionally, Employment Tribunals have given the word ‘danger’ a broad interpretation which is not restricted to the circumstances of the workplace itself. As such, it is quite likely that Covid-19 crosses the first hurdle of amounting to a ‘serious and imminent’ danger. The difficulty for employers, however, is that section 44 of the ERA 1996 does not prescribe what is expected of them in order to address an employee’s concerns about that danger when considering the second or third hurdles, summarised above.

In order to reduce the risk of a successful claim, employers may wish to consider reviewing the general practical Guidance[3] for all businesses, as well as the Guidance[4] which has been produced for specific sectors, before carrying out a thorough risk assessment and updating any written health and safety policy, if applicable. Given that there is no ‘one size fits all’ formula, there is also no bar on the thinking of creative solutions in order to achieve a safe workplace. Once plans have been designed, it would be advisable to consult with employees and unions in advance regarding the measures which have been taken, and attempt to seek agreement on a return to work plan.

One unknown is whether an employee’s concern regarding their commute to work falls on the shoulder of an employer. It is also currently unclear whether a refusal to return to work for this reason alone is reasonable. The Government has recently confirmed that wearing face masks will be compulsory for users of public transport from 15 June[5] and there have been various measures taken by travel companies to make a commute as safe as possible for both travellers and employees. However, if that is still insufficient to allay concerns, employers may wish to consider whether: an employee is at specific risk because of their health; alternative tasks could be given to the employee to work at home; a change of shift patterns to off-peak hours is possible or whether there exist adequate facilities to travel to work via private travel. It remains to be seen whether claims falling within this fact pattern may indeed fall within a successful section 44 claim, given that usually, travelling to work does not form part of the employment relationship, and so within an employer’s duties.

[1] https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

[2] https://www.judiciary.uk/wp-content/uploads/2020/06/FAQ-edition-date-1-June-2020.pdf

[3] https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/5-steps-to-working-safely

[4] https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

[5] https://www.gov.uk/government/news/face-coverings-to-become-mandatory-on-public-transport