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Covid-19 health and safety in the workplace

View profile for Reggie Lloyd
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Covid-19 health and safety in the workplace

An employee is entitled to make a claim under section 100(1)(d) and (e) of the Employment Rights Act 1996 if they are dismissed for exercising a right to leave the workplace, or to take steps to protect themselves, where they reasonably believe there is serious and imminent danger. 

The claim will be for automatic unfair dismissal and the employee does not need to have acquired 2 years’ service to make such a claim.

A tribunal has recently given judgement on this type of a claim in a Covid-19 related case. In that case, an employee (who had less than 2 years’ service) sent a message to his manager stating he would be staying away from the workplace until lockdown had eased because he was worried about the risk of infecting his children with Covid-19. One of his children was a young baby, and the other had sickle cell anaemia. 

When the matter got to a hearing the tribunal said that whether the employee had a “reasonable belief” that there was serious and imminent workplace danger must be judged from the known facts of what occurred at the time the act took place.  

The tribunal found that the employee did not have “reasonable belief” because;

  1. despite his concerns about Covid-19, he had breached the self-isolation guidance and driven to hospital the day after he left work;
  2. when he messaged his manager, he did not say he had concerns about a workplace danger, so he could not show that there had been any such danger;
  3. he had not taken any steps to avert the danger, nor had he raised any of the concerns with his manager before removing himself from work; and
  4. the employer had properly implemented the guidance issued by the Government on handwashing and social distancing.

As this is a tribunal decision it is not binding on other tribunals, but it sets out the test a tribunal will apply when assessing whether the employee had a “reasonable belief” that he was in serious or imminent danger.

This case demonstrates that these types of cases will be extremely fact sensitive, and that the actions of the employee and the employer at the time will be very relevant in determining the issue. 

This decision will be of comfort to employers who have taken heed of the Government guidance and implemented Covid-19 secure measures in the workplace. By taking such measures, it has likely put employers in the best possible position to defend a claim made by an employee alleging that the workplace was dangerous. 

If you are an employer or employee and would like advice about a health and safety claim in the workplace, please contact our expert employment solicitors on 01206 217347 or reggie.lloyd@birkettlong.co.uk

 

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