Mitigating the risk of COVID related claims in the workplace

Section 44 is a key provision of the Employment Rights Act 1996, which provides employees with the means to contest the adequacy and/or suitability of safety arrangements without fear of dismissal or of suffering any other unlawful detriment (for example, a loss of or cut in wages).

During the coronavirus pandemic and the return to the workplace following lockdown, we have seen employees relying heavily on section 44 provisions where the workplace they attend is not deemed to be ‘COVID secure’. Section 44 provides employees with the right to withdraw from, or to refuse to return to, a workplace that is unsafe and provides protection for employees who remain at home (or away from the workplace) if, subjectively, they reasonably believe that the workplace is harmful, or potentially harmful to health or safety, or that there is a risk of serious and imminent danger, which they could expect an employer to avert.

It is important to emphasise that it is the employee’s own subjective judgement that counts and not the judgement of the employer.

It should be noted that there is no period of qualifying service required to bring a claim for detriment or unfair dismissal as a result of an employee asserting their rights under section 44 and compensation is uncapped, which means that employers must be very careful in dealing with any circumstances that may give rise to this type of claim.

The existence of this legislation underlines why it is so very important to ensure that appropriate COVID secure risk assessments are completed and made available to staff. Where an employer has ensured that they have reasonable and proportionate risk assessments in place, they may be able to successfully challenge an employee who asserts that they believed they were in imminent danger and/or that any action the employee took, as a result, was ‘appropriate’.