How the Employment Rights Act is not fit for purpose in a world of lockdowns

In the wake of a national public health emergency workers across the economy have been told that for their own safety and to minimise the spread of the deadly Covid-19 virus that if they are able they should work from home. It is an eminently sensible exhortation but the reality is that those in sectors such as retail, construction, and servicing face the brunt of this call as these sectors, some of which are already on the breadline, cannot perform their roles remotely. What is a worker to do if they have genuine concerns for their safety? As the tragic experience of Emmanuel demonstrates that is a dilemma that can have fatal consequences.

Emmanuel Gomes, a United Voices of World member, was an outsourced cleaner working at the Ministry of Justice. He felt ill with Covid-19 symptoms and although he was no no fit state to work he did not believe he had any choice but to attend work because he could not afford not to. Shortly after a shift he died. Consistent with the public health crisis if he had felt unsafe to work he should have been able to avoid the workplace with no financial detriment to himself for doing so – without this there will always be a lever available to unscrupulous employers to push the most vulnerable of workers to work in unsafe environments and disproportionately spread the virus to colleagues (most of whom are from minority ethnic backgrounds).

After the first few weeks of the the first lockdown kicked in employers began to pressurise workers to return to their workplaces it was the most vulnerable and sometimes clinically vulnerable too who were most at pressure of facing the decision whether to do so and increase their risk of contagion for themselves and their loved ones or not and face the prospect of nil pay and dismissal. In the wake of such pressures many began to push the promise of what is for most a generally unknown right: the right not to be subjected to dismissal/detriment if an employee reasonably believes their safety is at imminent risk. Thus in May 2020 Owen Jones, the Guardian journalist, informed his large social media following that

Section 44 of the Employment Rights Act 1996 provides employees with the right not to suffer a detriment or be dismissed [the protection against dismissals is actually in s.100] for refusing to work in circumstances where they believe they would be in serious and imminent danger. It provides employee’s with the ‘right’ to withdraw from and to refuse to return to a workplace that is unsafe.

Owen Jones is certainly right that those are rights in the Act. They are provisions that provide a valuable and, in my experience, historically underused statutory right but the law on this is complex and as drafted the legislation provides much less protection than is implied by the summary. I will not go into the details of the law but, for those affected the first port of call needs to be your trade union and, if you’re not a member join today (if you’re not sure which union then drop me a message). However, there is some very good advice out there and I would particularly recommend barrister Gus Barker’s Coronavirus and Health and Safety Dismissals: A Guide.

However, after a few months of relative calm the spiralling infection rate and the no unmistakable second wave places the significance of whether the law provides adequate protection for worker into the spotlight again. Personally I am far from confident that absent a particular vulnerability on the part of an employee  (e.g., 70 years +, clinically very vulnerable, etc) that an employment tribunal would find the risk was serious and imminent, there will I suspect be a number of judgements beginning to filter out on that issue in coming months and I hope I’m wrong on this. However, suppose that a worker did have an ironclad case that they were at serious and imminent risk of danger and this belief was reasonable, would that worker then be justified in having confidence that they will be protected from bosses who look to force them to work in unsafe environments?

There are two reasons why that is not the case and why the section 44 and 100 of the Employment Rights Act 1996 is not fit for purpose for workers in a time of lockdown and public health crisis.

Pyrrhic victories

If a worker is dismissed because of certain reasons (such as trade union activities) then they have a right to apply to a tribunal within seven days and expedited hearing will take place not to determine the case but to decide if it is “likely” that they were dismissed for that reason and, if it was, then the employer will be ordered to pay the claimant’s full salary until the hearing concludes. The logic of this is clear: it is wrong for an employee to suffer huge financial loss (for example month’s of unemployment) when it is likely the employer dismissed them for fundamentally unlawful reason.

Section 100(1)(d) of the Employment Relations Act 1996 (which refers to an employee refusing to work because of a serious and imminent risk) is not one of the claims that that attracts this right. It is true than some employees, but by no means most or all, may be able to shoehorn their situation into a whistleblowing complaint (which is one of the gateways that allows a worker to make an interim relief application). However, many will not and what position are they left in?

They have been dismissed because they believed their health was at imminent risk by their employer. As thousands of others redundancies are made because of the carnage of Covid-19 on local economies the jobs market is awash with job-seekers and our dismissed employee is unable to find alternative employment she desperately needs to keep their heads above water. Our employee accumulates debt she cannot afford to keep food on the table, perhaps they are even forced out of their homes because of rent arrears.

Perhaps they are not a union member and pursue their unfair dismissal claim alone with no access to specialist advice. They are scared witless by threatening letters received from their former employer’s expensive solicitors telling them how the case is baseless and they may need to pay thousands of pounds in legal case when they lose the case. Even if they persist and don’t bow to the bullying tactics of the other side the fact will remain that time their unfair dismissal claim languishes in the quagmire that is the sometimes one year plus waiting time behind half a million other cases for an employment tribunal to be heard for even a relatively basic 1-2 day unfair dismissal hearing.

So when this former employee finally has her day in the tribunal and wins her case can it really be said she has even with the outcome suffered detrimental treatment? She has had a year on the breadline unable to pay her bills, may have lost her home, has lost a job and unable to find a new one. And, even then, her fight might not be over  – the employer will strenuously challenge whether she really did all she could to find another job (called mitigating the loss) and even if there is a substantial award it is a toss of a coin whether she will ever see any of the award because the employer is in insolvency proceedings or they simply refuse to pay (a study by the Department of Business in 2013 found 35% of tribunal awards were not paid by the employer).

In such circumstances I do not think, even on this best case scenario, one can say that a worker who exercised her statutory right not to work in an unsafe environment really ‘won’ and was not placed to a detriment. They still do not have a job, are emotionally exhausted, and broke. Meanwhile an employer – who on paper lost the case – has got rid of a ‘troublesome’ employee who asserted her legal rights and, seeing how she was treated, scared all her former colleagues to banish all thoughts of demanding ‘safe working’ from their minds.

Writing earlier today employment barrister Daniel Barnett (by no means a worker orientated lawyer as he frequently acts for and markets services specifically to employers) tweeted about this dilemma for employees in the context of the new lockdown:

In this second lockdown all workers are asked to work from home if they are able. With rising infections and fatalities most employees will be worried if they cannot do so and are faced with a choice: work and place myself at risk (or vulnerable people they live with) or refuse to attend and risk dismissal long term unemployment and financial ruin. This choice for those who are particularly vulnerable, such as those with asthma, diabetes, advanced age etc and here the choice is even more intense given the risk to health is even more present.

But with those in the extremely vulnerable critical category, whom the Prime Minister has expressly asked not to go to work even if they can’t work from home face a truly impossible position: even if they are following the express request of the government there is no corresponding legal obligation requiring them to stay at home and so they have the same choice to make and if they choose to refuse to work on safety grounds the only clear legal recourse they have is to the same section 44/100 is practically speaking ineffectual given the lack of any availability of interim remedy (they may have a age/disability discrimination case but here, again, there is no interim relief available).

What is so frustrating is that it is possible – even if only on a temporary basis – to legislate to make the rights of an employee under s.44/100 enforceable in such a manner that it does actually provide a forward looking protection rather than just an after the fact remedy. The failure to do so only increases the likelihood those most vulnerable contracting the virus and, in so doing, place avoidable burden on what will already be an overstretched healthcare system.

Employees only

The second way s.44/100 is not fit for purpose is perhaps even more harmful than the first in terms of worker rights but also public health. The employment law system in the UK is made up of a myriad of different levels of protection depending on whether you are self-employed, agency worker, limb b worker, employee under the Equality Act, Employee. Whether you have employment direction depends on where a worker (used generically) finds themselves. As with most of the Employment Rights Act 1996 s.44/100 is confined to employees only. So, this means the statutory right (even though as we’ve seen is far from adequate) does not even apply to huge swathes of UK workers. So many Agency workers, cleaners, gig economy workers are specifically excluded from the right. A vulnerable or extremely vulnerable worker who is not an employee is left with absolutely no legal rights (save the support and interventions of a trade union) specifically available to prevent being made to work in an unsafe environment as again the choice is stark: work, get paid and place yourself at risk or don’t work and go hungry (as a ‘voluntary’ resignation good luck accessing benefits in time).

Again, this is not hard to amend, the Employment Rights Act 1996 already has some provisions that extend protections to workers (albeit because of EU law) as can be seen in a recent TUPE case.

Professor Bogg, an eminent labour law scholar, has noted how disappointing it is given the present crisis that the government has gone so far to actively oppose an extension of health and safety rights to workers:

The reference to Government resistance is to a Judicial Review brought by the IWGB union. The IWGB explain that

The IWGB is arguing that the UK Government failed in its obligation to transpose health and safety directives from EU law into UK law. Whereas UK health and safety law only protects employees, EU law extends these protections to all those classified as workers. This law applies until the end of the Brexit transition period and the government has repeatedly promised to retain EU derived employment rights into the future. The Secretary of State for Business, Energy and Industrial Strategy has joined as a second defendant to the proceedings, alongside the Secretary of State for Work and Pensions.

What next?

Time and time again it has been shown that the best protection for a worker is both trade union membership and a a vigorous defence of worker rights. The statutory rights should be nothing more than a minimal level, the real battle and real protection of a safe workplace comes from union campaigning, and crucially, member support and engagement in that campaign which must always include the possibility of collective action to ensure workplaces are safe (which includes provision for working from home whenever possible). So the first task of any worker is to join a relevant union (if there’s an active union that’s probably the one to join). The second task is to get active in that union.

However, at a time when Parliament has enacted legislation that restrict the right of citizens to a degree not seen since the mid twentieth century (which, by an large, trade unions have supported) it is surely not unreasonable that this time of emergency legislation to address the above issues is passed to enhance the rights of workers to protect their own health and, in doing so, also better enable workers to confidently assert their rights to work in a safe environment at a time when even a commute to work can in some rare circumstances be a death sentence. This is something the whole trade union movement should be pushing through its political wings. 

It would not hurt either for some expressions and support for the battle the IWGB is waging in its JR against the government. 

 

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