Covid-19: advice for employers on automatic unfair dismissal and a safe return to work
The general rule is that an employee can claim unfair dismissal when he has been employed for a certain period. However, this requirement is waived and an employee is able to claim automatic unfair dismissal if he can be shown that proceedings have been issued against an employer to either enforce a statutory right or to seek a remedy resulting from a breach of his statutory rights.
Employers and businesses are facing a strain during Covid-19 however this does not provide a mitigating reason for failing to adhere to a statutory duty owed to an employee. Employees continue to benefit from the statutory right not to be subjected to any detriment by any act or any deliberate failure to act which raises valid health and safety concerns.
Examples of health and safety concerns would include:
- Asking an employee to return to work when it is dangerous or unsafe to do so;
- Failing to conduct a proper risk assessment;
- Dismissing an employee who refuses to return to work or stays away from work due to valid health and safety concerns;
- Dismissing an employee who raises valid health and safety concerns.
Employees are likely to be protected from dismissal if they refuse to return to work due to valid health and safety concerns and if they can show that their employer has been negligent. Employers need to be careful and follow the correct procedures, law and guidance when asking employees to return to work and equally when considering dismissal.
The government has issued sector-specific guidance to facilitate a safe return to work – accessible at https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19. Adhering to the government’s guidance will assist an employer faced with an employment claim to show that reasonably practicable steps have been taken to facilitate a safe return to work.
In addition to or alongside following the government’s advice, employers should take the following steps to facilitate a safe return to work:
- carry out risk assessments: all employers should conduct risk assessments to identify and minimise any health and safety concerns at work.
- Identify groups: when conducting risk assessments, employers should identify groups within the workplace e.g. vulnerable and high-risk employees.
- consider risks when working from home: an employer’s risk assessment should not be limited to the physical building in which employees work. The idea here is to ensure the safety of employees. Employers should go on step further and consider any potential risks an employee may face whilst working from home and consider how they can be minimised.
- keep a record: an employer with more than five employees must write down any significant findings arising from a risk assessment. The government encourages employees to publish results of their risk assessments on their websites and this is expected of all employers with more than 50 employees.
- review your findings: risk assessment should be conducted at regular intervals. Employers will need to adapt and widen their risk assessment and the way in which they mitigate risks in line with the changing and demanding pandemic.
- Speak to your employees: it is important to consult with your employees to gather their thoughts on returning to work. This will help employers to identify relevant concerns and find ways to address them during a risk assessment. Employers should be mindful that where employees are not represented by union safety representatives, there is a statutory duty to consult employees or their appointed representative about health and safety concerns. It is a criminal offence not to comply with this requirement.
- Consider the employees point of view: whether a suitable and effective health and safety system is in place will not depend on what the employer thinks but how the employee genuinely regards the situation to be. Any effective risk assessment will be incomplete without considering the state of mind and concerns of employees.
- Consider others: employers should consider the health and safety of any visitors, contractors and clients attending the workplace to avoid potential claims beyond the scope of employment law.
- Concerns outside of the workplace: employers should be mindful of external factors such as vulnerable and high-risk family members of employees. Arguably, it can still be automatic unfair dismissal if an employee is dismissed due to concerns raised regarding the risk, he poses to others by having to attend an unsafe workplace.
If you are an employer in need of advice on how to facilitate a safe return to work or an employer faced with a possible dismissal claim, we have specialists who are here to help.