1. Introduction

The NI Executive has now published its 5-stage Lockdown Exit Plan, which will eventually see the gradual return to work for a lot of employees. In England, the Government has already said employees should be actively encouraged to return to work, where they cannot work from home. Therefore, as an employer, you may well be already making difficult decisions about matters that have never affected your workplace before. One of the critical issues is most certainly going to be the health and safety of your employees.

A lot of employees may be anxious about the dangers or risks to which they may be exposed on their return to work during this pandemic. Concerns about health and safety may relate to both the journey to work for those who cannot avoid public transport and of the workplace itself. So what should you do if an employee raises a concern that the arrangements for return to work result in a risk to health?

  1. The legal position

This is a potentially difficult situation as it remains unclear and untested how the Industrial Tribunal would interpret the protections afforded to employees in the Employment Rights (NI) Order 1996 (ERO) within the context of the COVID-19 pandemic.  An employee may be protected under Articles 68 and 132 of the ERO from being unlawfully subjected to a detriment on health and safety grounds or from automatic unfair dismissal for raising health and safety issues in the circumstances outlined below.

Under Articles 68 and 132 of the ERO, employees have the right not to be subjected to any detriment and the right not to be dismissed on the ground that:-

“in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”.

The ERO also protects employees from being subjected to a detriment or dismissed where:

“in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”

  1. The employee’s “reasonable belief”

The above protections require a “reasonable belief” in a “danger” which is “serious and imminent”. Whether the steps an employee takes are appropriate is to be judged by all the circumstances, including in particular, the employee’s knowledge as well as the facilities and advice available to the employee at the time. So it doesn’t matter if the employer disagrees with the employee’s belief or if an employee’s colleagues have a different view. However, it will be important that you communicate clearly with employees about the steps taken to ensure their health and safety in the workplace, including any risk assessment carried out, measures put in place to comply with Government guidance (and/or any guidance issued by the NI Executive) as well as additional training to be given to ensure safe working.

  1. Is COVID-19 a danger?

So would it be reasonable for an employee to consider COVID-19 as a “danger” which is “serious and imminent”? It may very well be. For as long as the virus remains widespread, and no vaccine has been found, every workplace is potentially an environment in which there is a serious danger, particularly for those employees that are older or vulnerable. Therefore, it is important for employers to ensure they follow any necessary guidance and ensure they have taken steps to mitigate any health and safety risks presented by the virus, such as PPE (where necessary and appropriate), screens or marking 2 metre gaps on the floor to apply social distancing. We will be providing more suggestions and guidance in our next briefing on return to work.

  1. What should employers do now?

Before this pandemic, employment disputes in which employees refused to work because of danger were relatively rarely seen by the employment tribunals both here and in GB. So there is limited case law on the legislation referred to above. No doubt the concepts of “reasonable belief” and a danger which is “serious and imminent” will be litigated within the context of the current pandemic in due course.

For now, it is worth being mindful of the fact that these protections exist for employees. So the risk remains that without any qualifying service employees may present a claim to the Industrial Tribunal alleging they have been subjected to a detriment or dismissed as a result of raising concerns about their health and safety at work in light of COVID-19. No qualifying service is needed to raise such claims and, if successful, any compensation may be unlimited. Any dismissal on the grounds of health and safety would also be automatically unfair. In addition to a detriment or dismissal claim, an employee may also bring an unlawful deduction from wages claim in the event the employer was to stop paying the employee’s wages if he/she refused to attend his/her workplace due to a reasonable belief that COVID-19 presented a serious and imminent danger.

This highlights the importance of transparency about the information you give to your employees and trade unions (where applicable) about the Health and Safety advice and assistance as well as risk assessments that you intend to undertake to ensure your workplace is safe. Heading down the misconduct/disciplinary route with an employee who raises legitimate concerns may result in a health and safety detriment or dismissal claim. Also, as an employer you need your employees available to work and disciplining them will neither create good will nor good employee relations in such difficult and uncertain times. That said, each situation must be considered on its own facts and disciplinary action may be necessary and appropriate in certain cases.

  1. Coronavirus Job Retention Scheme update

The Government announced on 12 May that the Scheme will be extended for four months, until the end of October 2020.

Until the end of July there will be no changes.

From August to October 2020, the Scheme continues on the basis furloughed employees can be brought back part-time. Full details will be published by the end of May and we will keep you posted on this.

  1. Annual leave and furlough

The Government has also issued guidance on annual leave during furlough. Many employers are now requiring employees to take annual leave whilst on furlough, mainly to prevent them accruing significant amounts of annual leave which they would be due to take on their return to work or when their employment ends. The new guidance supports the view covered in our previous briefing note that employers can require employees to take holiday during furlough but consideration should be given to an individual’s circumstances. The relevant part of the guidance states “If an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.”

A link to the Government’s guidance on annual leave can be found here

This article does not constitute legal advice and specific advice should be sought in respect of particular cases.