You have probably been following the ongoing debate around the opening of schools. While COVID-19 is said to pose little risk to children, many teachers and parents are worried that opening schools could spread the virus to themselves and the wider community.
Even without the last-minute lockdown, many schools were bracing themselves for staying closed on 4 January because staff were refusing to work. The National Union of Teachers advised staff to invoke their rights under Section 44 of the Employment Act of 1996. This states that employees can leave work without fear of punishment if they have a reasonable belief that they are in serious danger. Other teaching unions did the same, even providing teachers with Section 44 letters to present to their employers.
The use of Section 44 is not confined to the education sector. You may be wondering if your employees could invoke the legislation and refuse to work, either individually or en-masse.
What does the law say?
Section 44 states that an employee should not be punished for refusing to work if they “reasonably believe a situation to be of serious and imminent danger.” A key phrase here is “reasonably believe”. You may consider the workplace to be safe, but if there is genuine belief of danger on the part of your workers with “all knowledge, facilities and advice available at the time” then that is sufficient for them to be protected under section 44. This is tricky to judge in the case of COVID-19, as official advice changes frequently and is sometimes contradictory.
How should you respond?
Rather than respond to staff action under section 44, it is far more preferable to mitigate against the argument of a perception of serious risk before it arises. Staff involvement and consultation is key to developing a safe working environment that everyone is comfortable working in.
Achieving this is about communication and collaboration. As the employer, work hard to provide employees with all knowledge, facilities, and advice to demonstrate you are acting proactively, safely and in line with the law.
This means staff consultations and meetings to transparently develop your risk assessments and then present them, complemented by follow-on staff training.
When you involve staff in these plans, it becomes significantly more challenging for section 44 to be used as a defence in dismissal cases, because the staff member has to have a reasonable belief. This becomes much harder to substantiate if you can demonstrate such claims to be “unreasonable” through your protective measures, consultation and training.
The health and safety profession has a stance here, which is: “If it’s reasonable to work in Covid wards, care homes, construction sites and logistics (high risk) with PPE and ongoing risk analysis for COVID-19, and there is little to no argument of reasonable belief; then it is hard to substantiate in any other industry (lower risk) with the same robust protective measures and two-way staff communication/training“.
The Covid pandemic has seen many twists and turns, the most recent being the new variant that has spread across the UK. Has your risk assessment kept up with these? Perhaps a robust review of it, in consultation with your employees as outlined above, will be sufficient to bring them back into work with confidence. Even if that may not be enough on its own, it is important to review your risk assessments regularly anyway as the situation evolves.
When mitigating against section 44, and indeed developing your risk assessments more generally, you should factor in the vulnerability level of individual employees. This will affect individuals’ perceived danger levels and the reality. For some, as per government advice, shielding may be the only answer.
If you need help developing (and being seen to develop) a new robust COVID-secure plan, please get in touch with us.
