When we deal with HR matters we quite often do research on previous tribunal cases/judgements to give us a steer on how the tribunals responded to a situation and what the outcome was. These shouldn’t be relied upon 100% as every case is dealt with on its own merits and circumstances, but it definitely gives us a guide.
At the beginning of the pandemic we found ourselves in the very unusual position of not having any previous cases or judgements to refer to because the pandemic was not something we had come across before. In some cases solicitors, lawyers and HR consultants simply weren’t able to give answers to clients on how a certain situation may pan out or how the actions of an employer might be perceived if taken to a tribunal.
We are now starting to see some tribunal cases reaching the courts and outcomes and judgements are becoming available to view, so I thought for today’s blog it might be useful to share a couple of case outcomes with you, from a point of interest.
A big problem for employers was that with no cure, no vaccine programme, and evolving data on how Covid was spreading, how it was transmitted and how effective PPE, face masks and cleaning regimes were, we found ourselves in the position of not actually being able to genuinely or reasonably believe we could provide a workplace free from harm, which of course we are required to do under health and safety guidance and obligations. Of course, we can never 100% guarantee this anyway, but we must endeavour to try.
This is referenced in section 44 of the Employment Act 1996 and talks about an employee(s) having a right to leave work depending on the specific circumstances, where having raised their concerns there remains a serious or imminent danger to the employee(s). So consequently, even though many employers were completing their risk assessments and putting measures in place to protect employees, employees were concerned and in many cases were refusing to come to work. Some organisations took disciplinary action and others made adjustments such as working from home, furlough leave, unpaid leave, adjusted working hours etc.