June 2020 edition: Return to School: A Carefully Managed Risk or a Serious and Imminent Danger?

Return to School: A Carefully Managed Risk or a Serious and Imminent Danger?

How did we get here?

Friday 20 March 2020 – This date will live long in the memory of parents, teachers and pupils across the UK. This is the date that the UK Government closed schools due to COVID-19. For millions across the country, life changed forever on that day.

Wednesday 20 May 2020 – As I write this article, three months on, schools across the country are wrestling with the challenges and complexities of opening up again.

Closing down schools, from a practical perspective, is easy. Opening them up in the current circumstances, is anything but. It is fraught with doubt, danger, worry and risk. Some of those risks are obvious. Some less so. Some are essentially hidden. One such hidden risk, which is likely to rear its head sooner rather than later, can be found in two seldom used parts of the Employment Rights Act 1996 ("ERA”).

ERA Section 44 & 100


These two sections of the ERA protect employees from being dismissed or subjected to a detriment because they reasonably believed there is a serious and imminent danger in the workplace. Normally, there is no serious and imminent danger in a workplace, or if there is, it is clear and present and obvious. With COVID-19, not only is it invisible it is, potentially, everywhere.

As a result, if an employee refuses to attend work because of fear of COVID-19, and they can demonstrate they had a "reasonable belief” of a "serious and imminent danger” and that employee is:-

Denied pay; or
Disciplined; or
Dismissed

That employee potentially has a valid claim under section 44 (detriment) or section 100 (dismissal).

To make matters worse:-


No length of service is required for these claims.

There is no cap on the compensation available.
The employee does not need to demonstrate that such a danger actually existed – just their reasonable belief that it did.
An employee who is clinically vulnerable will be even better placed to demonstrate serious and imminent danger.
Even if the employee does not meet the threshold for a section 44 of section 100 claim, they could argue they have made a protected disclosure ("blown the whistle”) which gives them near identical protection anyway.
There is also a risk of a constructive dismissal claim if issues like this are not handled reasonably.

Much like the virus, sadly, these issues are not going away any time soon. However, there are things you can do to mitigate that risk.

Mitigation Strategies

An employer faced with a reluctant returning employee must tread extremely carefully. Rushing to judgment or dismissal carries significant risk. However, there are three core principles to adhere to in order to limit that risk:-

Assess risk properly and often

Schools are required to carry out full risk assessments,assessments and a whole host of other measures before re-opening. Carrying these out to the letter, and with vigour, will help demonstrate that the environment is as risk free as it can be during a pandemic.

Communicate

It is imperative to communicate the steps taken to make the workplace safe. Make it visible to all employees the effort taken so it is abundantly clear that the school is as safe as possible.

Consider

It may not be possible to take further steps to alleviate an employee’s concern. However, don’t assume this is the case. Discuss their specific issues and whether there is anything you can do to allay their fears.

"I am not returning to work until it is safe”

Schools are required to carry out full risk assessments,and a whole host of other measures before re-opening. Carrying these out to the letter, and with vigour, will help demonstrate that the environment is as risk free as it can be during a pandemic.

Ian Deakin

Finally, much has been said about returning to work, not only in schools but across all sectors, about when it is "safe”. If by safe we mean no risk of COVID-19 then it may never be, as a practical matter, safe. We may never get a vaccine and if we don’t, we will have to learn to live with the virus.

As we move deeper into the pandemic, and as infections and serious illnesses fall, the risk posed by section 44 and section 100 will lessen. It will become more difficult for employees to demonstrate that serious and imminent risk and therefore, a detriment or dismissal flowing from it.

However, for now, that risk, like the virus, isn’t going away any time soon. Much like waiting for a vaccine, we’ll have to continue to find ways to live with it for the time being.

Browne Jacobson LLP is a CST Platinum Partner.