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Staying away from work because of Covid: a trap for employers?

Hari Menon looks at the problems that arise for employers where an employee stays away from work, pointing to the risks to his health from potentially contracting Covid.

Consider this scenario. Employee X, has a particular health condition which makes him especially vulnerable to contracting Covid and to the effects of Covid. There are several unvaccinated co-workers in his place of work. They are unvaccinated by choice which has nothing to do with any medical reason. X’s employer does not require employees to be vaccinated or require employees or customers to wear a face mask at the workplace. The requirements of X’s job are that he cannot work remotely. His job requires contact with his colleagues, none of whom work in compartmentalised units such as offices occupied by a single person. X stays away from work and refuses to return, citing the risk to his health caused the potential to contract Covid from by his unvaccinated co-workers and no one wearing a mask in the workplace. What are the options open to the employer and to X in response to any action taken by his employer?

It is the duty of an employee to undertake work provided by the employer. When the employee fails to attend for work without good reason, an employer may withhold wages for the period of the employee’s absence or dismiss him. As against that, it is the employer’s duty under s.2(1) of the Health and Safety at Work Act 1974 to ensure the health, safety and welfare at work of all its employees, so far as is reasonably practicable, and failure to discharge this duty is an offence under s.33 of that Act.

Section 44(1A)(a) of the Employment Rights Act 1996 (ERA) applies to detriment by way of non-payment of wages. Its counterpart in relation to dismissal is s.100(1)(d).

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S.44(1)(a) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer done on the ground that—

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

s.100(1)(d) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that …..

(d) 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.

Note that the danger does not actually have to be serious and imminent. It is X’s reasonable belief that matters and this will depend on the circumstances. Nor is it a requirement that the employee must have any disability or other condition that makes him particularly vulnerable to contracting Covid or to its effects. It is obvious that employees with a condition which makes them especially vulnerable to contracting Covid and to its symptoms will be in a better position to make out the reasonable belief. Whether X could reasonably have averted the danger to himself is a question of fact. Clearly, if X is say, immunocompromised and unable to take the vaccine, it may be reasonable for him to harbour the belief that it is simply a matter of time before he is exposed to a life-threatening infection in workplace where unvaccinated and unmasked colleagues and perhaps, also customers, pose a danger to him. It is also important to bear in mind that even an employer who has no reasonable means of averting the risk to X is not given any leeway under these provisions The test is what X reasonably believed, not whether his employer had the capability to avert the danger to him or whether it was reasonably practicable for the employer to do so.

The risks posed to the employer by a s.100(1)(d) dismissal should not be underestimated. First, reasonable belief on the part of the employee is a relatively low bar, given that there is no need to prove actual danger. Secondly, under ERA s.108(3)(c) a s.100 ERA claim does not require a qualifying period. Thirdly, except where the employee does not have the adequate qualifying years’ service, it is for the employer to prove a permissible reason for the dismissal. Fourthly, once it is shown that the reason, or a principal reason is caught by either provision, no issue can arise as to reasonableness because the dismissal is automatically unfair. Fifthly, the employee does not have to prove any disability and consequently, Equality Act 2010 considerations of proportionate means, PCPs and reasonable adjustments have no relevance. Sixthly, the fact that the employer has no reasonably practicable steps available to prevent the employee being exposed to risk in the workplace is irrelevant. Lastly, compensation for such a dismissal is uncapped – this is expressly provided for by s.124(1A) ERA.

If it finds that the employee’s reasons for staying away from work are prima facie well-founded, a reasonable employer would take all reasonable and practicable steps to obviate or minimise the risk to the employee, including modifying the workplace or redeploying the employee. If all such options have been exhausted or are not reasonably practicable and the risk to the employee, or the employee’s fear persists [1], what is the employer to do? If it ceases paying the employee, it risks a detriment claim for unpaid wages. If it dismisses the employee for failing to attend work, it faces an automatic unfair dismissal claim.

A possible way around this appears to be for the employer to treat the contract of employment as being ended by frustration in that further performance of the contract is rendered impossible by supervening events [2]. This is not a dismissal. The supervening events would be the pandemic and the employee’s reasonable belief in the danger to him in the workplace, neither of which is the fault of either party. If the employee is disabled under the Equality Act 2010 (EA) a dismissal claim under s.15 and s.20 of the EA should be anticipated, though the defence of frustration would, if successful, defeat both such claims.

The doctrine of frustration is encapsulated in this passage from the decision of the House of Lords in Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854, 909: “There are two essential facts which must be present in order to frustrate a contract. The first essential factor is that there must be some outside or extraneous change of situation, not foreseen or provided for by the parties at the time of contracting which either makes it impossible for the contract to be performed at all, or at least renders its performance something radically different from what the parties contemplated when they entered into it. The second essential factor is that the outside event or extraneous change of situation concerned, and the consequences of either in relation to the performance of the contract, must have occurred without the fault or the default of either party to the contract.”.

It is important to note here that the defence of frustration will not succeed if the employer is at fault. It follows that an employer must explore all reasonable alternatives such as redeployment and re-configuration of the workplace before seeking to invoke frustration. A failure to do so would nullify the defence.

In responding to a s.100(1)(d) claim, could the employer rely on an SOSR dismissal on the ground that the employee is unable to attend for work in circumstances, and for reasons, which the employer cannot control? The risk with relying on this is that it may be regarded as a s.100(1)(d) dismissal with a different label if it is found that the employee did, indeed, have the reasonable belief. However, it should be relied upon as an alternative in the event the employee’s reasonable belief is not made out.

If the employee has no underlying condition, vulnerability or disability, the issue of whether he had a reasonable belief in the serious and imminent danger to him is (all other things remaining equal) likely to be more difficult to establish [3]. It should however, not be thought that the fact that such an employee is in the same boat as his co-workers is a bar to running a s.100(1)(d) claim, or indeed its detriment counterpart in s. 44(1)(a). The fact that other workers may be prepared to put up with or overlook any such risk is not to the point. Relevant factors here will include working arrangements such as the proximity to other colleagues, any aspect or feature of his duties which places him at greater risk of infection, the prevalence of Covid infections in that workplace or locality and the extent to which government guidance is followed. This is a potentially difficult area, especially in the absence of any current appellate authorities and even so, is likely to be determined on the individual facts of a case.

For the reasons discussed above, and apart from any obviously manufactured false claims, it is inherent in the nature of s.44(1)(a) and s.100(1)(d) claims that employers could be very much on the back foot. Such claims have the potential to become more ubiquitous and the following months will tell us whether Covid has set off a trend in yet another species of claim.

Hari Menon is a barrister at Parklane Plowden.

This article sets out the author’s views on the topic discussed. It is not a substitute for legal advice and should not be relied upon as such.

[1] Assuming that the employee harbours a genuine belief in the danger to him and is not simply using Covid as an excuse to absent himself. The latter would clearly be misconduct, but it would require an intrepid employer supported by clear evidence to rely on this.

[2] By analogy with frustration where an employee cannot attend work because of imprisonment. See e.g. F C Shepherd & Co Ltd v Jerrom [1986] IRLR 358, [1986] ICR 802.

[3] For a somewhat benevolent (to the claimant) treatment of reasonable belief of serious and imminent danger, see the ET decision in Accattatis v Fortuna Group 3307587/2020; 6.4.21 para.49 and 50 of the Reasons. This was a claim under a different, but related, sub-section, s.100(1)(e) which contains the same reasonable belief provision. The claimant did not have any condition which made him especially vulnerable to Covid, but Tribunal accepted that the claimant had made out his subjective belief because he had Covid-like symptoms for 3 weeks (albeit he was never diagnosed as having the virus) and had to travel by bus to work each working day. His claim failed because the Tribunal found that (i) his additional insistence on being furloughed was not an appropriate step for the purposes of s.100(1)(e) and (ii) the real reason for the dismissal was his employer’s desire to sack him before he had the 2 years’ qualifying period for unfair dismissal.

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