Following Government guidance on how to return to work safely does not guarantee that employers will not face claims from employees. It is the start rather than the end of the story. With many regarding the government's decision on encouraging return to the workplace as controversial, there is scope for a wide variety of disputes to arise on whether it is actually safe to do so. Therefore, it is important for employers to understand that employees have the right not to be subjected to a detriment or dismissal in connection with health and safety. The compensation for such dismissals is unlimited.

Return to work and automatic unfair dismissal

What is the risk?

The Employment Rights Act 1996 (ERA) gives employees a day one right not to be subjected to a detriment or dismissal by their employer on the ground that:

• in circumstances of danger
• which the employee reasonably believed to be serious and imminent
• and which the employee could not reasonably be expected to avert
• they left (or proposed to leave)
• or (whilst the danger persisted) refused to return to their place of work or any dangerous part of their place of work.

An assertion of this right could arise in many contexts. For example, an employee could refuse to return on the basis that they are living with a vulnerable person who they do not want to put at risk. If the parties cannot agree on working from home, this might result in a stand-off between employer and employee, eventually leading to constructive or actual dismissal. Such a dismissal might be automatically unfair, depending on whether the employee's belief in the danger being serious and imminent was reasonable. Another context in which this issue might arise is where the employer stops paying wages because of a refusal to return to work.

If a refusal to return in the circumstances listed above is at least the principal reason for a dismissal the dismissal will be automatically unfair under the ERA. A compensatory award for an automatically unfair dismissal for health and safety reasons is not capped by the statutory limit.

Managing the risk

Health and safety rights under the ERA are undoubtedly going to become more well-known as employers, the UK Government, and employees face the practical challenges of returning to work. There is little doubt that the pandemic is a circumstance of danger. The key question that will have to be answered to assess the likelihood of this right being triggered is whether an employee's fear of imminent danger is reasonable in the circumstances at their specific place of work. Clear evidence of an assessment of risks prior to any return, following the guidance of the UK Government in relation to the same and regular re-assessment as circumstances continue to change will all help to avoid this specific legal risk. However, it is an employee's individual circumstances that will ultimately determine whether they have a reasonable belief that working is not safe.