What can you do when your Employee refuses to come into work citing Section 44 of The Employment Rights Act 1996

As we are now amid Lockdown No3 in the UK we know this is affecting many businesses with a strong ‘work from home’ message, but what about other Employees, the ones left in the workplace.

The Lockdown will undoubtedly ignite uncertainty into Employees who are worried about contracting the new variant of coronavirus, since the return from the Christmas break, we know this firsthand and have seen an increase in Employees refusing to return to their place of work, it now seems more have been citing Section 44 of the Employment Rights Act 1996.

What exactly is Section 44?

Section 44 of the Employment Rights Act 1996 is applicable to all Employees, but it does not apply to self-employed contractors.

Section 44. clarifies the circumstances in which an Employee can take “appropriate action” to withdraw/remove themselves from danger.

See Section 44.1(d) and Section 44.1(e) states as below:

(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, or

(e) in circumstances of danger which the Employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

Employment Rights Act 1996 (legislation.gov.uk)

In these circumstances an Employee could refuse to work by staying at home, walking out of the workplace or by choosing not to do certain tasks.

 

What should you do if your Employee refuses to return to work citing Section 44?

As an Employer you should be aware that you have a duty to provide a safe work environment for all your Employees.

The Government have provided full and comprehensive support and guidance in relation to Covid secure workplaces, how to conduct risk assessments and much more.

You can read more about Covid secure workplaces here:

Working safely during coronavirus (COVID-19) – Guidance – GOV.UK (www.gov.uk) or on our Website: Covid-19 Toolkit | HR & You (hrandyou.co.uk)

• As an Employer you must ensure that you have carried out a specific risk assessment within their workplace.
• Actioned the risk assessment.
• That it is shared amongst the team.
• Have adequate measures in place to allow their workplace to open safely.
• Review the risk assessment on a regular basis.
• Assess whether you can supply safety equipment for employees.
• The duty to comply with legislation The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (legislation.gov.uk)

It is important to note that Employees must not be working if either you have no risk assessment, or your place of work or conditions are not Covid secure.

 

What if you get a visit from HSE?

The Health and Safety Executive (HSE)  can and do make visits to the workplace, as part of this check if your workplace is not safe, and you cannot say you have taken reasonable action, then the HSE can issue a sanction.

Employers have now had time to conduct risk assessments over the previous months, we are assuming these have been completed, if you have not done so or have not reviewed yours you should do so as conditions may have changed, or standards may have slipped.

 

 

We are acutely aware that if this matter is not handled appropriately it could lead to claims of constructive dismissal or unfair dismissal.

How can we help you

We can provide you with up-to-date assistance in any area of HR, Employment Law matter and provide you with Covid advice and guidance.

Please contact a member of our team today to discuss any matter: 0333 006 9489

Author

Fran  Crossland