We ask employment solicitor, Matthew Chandler, what employers should do if staff won’t return to work because of coronavirus concerns.

Last Sunday (10 May), Boris Johnson announced that some employees would be returning to work this week.

The divisive move has caused outrage among unions and employees who are worried about contracting coronavirus.

Some have refused to come in, citing Section 44 of the Employment Rights Act 1996.

What is Section 44?

Section 44 of the Employment Rights Act 1996 applies to every employee but not self-employed contractors. If an employee has a reasonable belief of ‘serious or imminent danger’ to their health and others around them, they can refuse to work on the grounds of Section 44.

They could refuse to work by staying at home, walking out of the workplace or by choosing not to do certain tasks.

We speak to lawyer Matthew Chandler, employment solicitor at A City Law Firm to find out what you should do if employees won’t come to work.

What if an employee refuses to return to work citing Section 44?

Employers should be aware that they have a duty to provide a safe work environment for employees.

They should be looking at doing coronavirus-specific risk assessment. The government have provided guidance to employers, for example keeping a two-metre distance.

Employers should have conducted a thorough risk assessment already. It might also be worth reviewing their written health and safety policy. They should have one if they have more than five employees. They should also assess whether they can supply safety equipment for employees.

So:

  • Have you done a risk assessment?
  • Have you communicated with your employees about the steps taken?
  • Have you thought of creative ways to adapt the workplace to make sure it is safe for employees?

We’re going to be seeing a lot more Section 44 complaints coming into play. For employers, it’s hard – it doesn’t prescribe what’s expected. In short, employees shouldn’t expect detriment if they bring health and safety worries to the employer’s attention.

If the matter isn’t handled carefully, it could lead to claims of constructive dismissal or unfair dismissal. The law will be looking at the belief of the employee. Coronavirus is enough to classify as a danger and a reason not to return to work.

 

Original article ‘Section 44 – what if my employees refuse to return to work’ Published by smallbusiness.co.uk

 

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