The current standoff between the teachers and the Government over the safety of teachers and some children going back to school raises an important legal principle: the right of individual employees to protect their safety.
Let’s be clear up front we are not asking or encouraging members to do or refrain from anything at all. We are merely providing members with information as to their individuals rights under sections 44 and 100 of the Employment Relations Act 1996.
The individual rights to protection from detriment and dismissal in section 44 of the Employment Relations Act cover 6 situations. Of particular relevance are section (d) and (e) which protect employees from detriment on the grounds that:
(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, they left (or proposed to leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of their place of work, or
(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themself or other persons from the danger.
Category (d) is deliberately framed in wide terms. Where an employee reasonably believes that there are circumstances of danger which are “serious and imminent” they can tell their employer that they plan to leave the workplace, actually leave or even refuse to attend for work.
The key issue is whether an employee possesses a reasonable belief that he or she is being exposed to a serious and imminent danger. It is not enough for the employer simply to disagree with the employee’s assessment of the situations; if the employee is found to have possessed a reasonable belief, he or she will still qualify for protection. In the current environment it is difficult to see an Employment Tribunal refusing to accept that some employees, fearful of infecting others or being infected, did not possess reasonable beliefs that either being at work or commuting to and from work placed them or members of their families at risk of serious and imminent danger.
So far as individual rights are concerned, there are no guarantees in any legal dispute and much would depend on individual circumstances, but this protection is in place and can be used where an employee can demonstrate a genuine belief. Simply saying: “I think going to work could bring me into contact with someone with Covid-19 and I could become ill.” would not be enough and a Tribunal would undoubtedly look at the employee’s circumstances (e.g. whether the individual or a family member in a high risk group) to determine whether he or she could demonstrate that a genuine belief could exist.
Members who would like to discuss this advice in more detail should contact the Union’s Advice Team on 01234 716029 (choose Option 1).