Section 100 Bursts into the Boardroom

Those operating in an environment highly regulated by health and safety requirements (construction and the NHS for example) will be familiar with Section 100 of the Employment Rights Act 1996.  For office-based workers however Section 100 is a little known provision which, before the pandemic, rarely came up in practice.

With the onset of our ‘new normal’ however, it is likely that Section 100 for office based staff will ‘come into its own’ and office-based HR departments should re-acquaint themselves with this section and consider the issues that are likely to arise once ‘lockdown’ goes ‘light’.

Section 100 of the Employment Rights Act 1996 provides that an employee (even those with under 2 years’ service) who is dismissed will be automatically unfairly dismissed if the reason for that dismissal is that

“… in circumstances of danger which the employee reasonably believed to be serious and imminent, and which the employee could not reasonably have been expected avert, the employee left (or proposed to leave) or (while the danger persisted) refused to return to their place of work, or any dangerous part of the place of work or took (or proposed to take) appropriate steps to protect themselves or other persons from the danger”.

Section 44 has mirror provisions but protects employees from suffering a detriment for those reasons, as opposed to a dismissal.

There is much talk in the press about a ‘staged’ release of the lockdown whilst maintaining the current social distancing guidelines.  When the guidelines were initially introduced, they caused some confusion and whilst some clarity has been provided, it is likely that similar confusion will be created over the course a phased lockdown release. Combine that with an employee population which has remained at home for what may well have been 6 weeks or more, during which they were subjected to a range of media comment on vaccines, antibody tests, death rates, second peaks, face masks and social distancing measures, and it is likely that some employees will be hesitant to leave what is perceived as a ‘safe’ location and re-engage with long commutes on public transport and/or the ‘bustle’ of a working office environment.

This creates potential issues for businesses. Consider for example the following scenarios: –

• an employee refuses to come back to the office because they live with a grandparent who is fit and healthy but aged 92; or
• an employee who doesn’t wish to return to the office until all staff are wearing a face mask; or
• an employee who has a long commute and says that South West Trains have cut services such that the coaches are full where social distancing is impossible and/or that no cleaning is being regularly undertaken on the trains.

What can/should the employer do?  Do they insist on them coming to work and dismiss them if they do not turn up, or do they allow them to remain at home without pay, or are they obliged to facilitate their working from home and if so, for how long.  The answer to these questions will depend on what guidance is issued by Public Health England or any other relevant authority at the time of the ‘release of lockdown’.  Throw in a heady mix of possible disability issues arising for those at particular risks and/or associative discrimination for those in households with disabled individuals and there is no doubt that the issues are complex to unravel.

The secret to addressing these issues however is to ensure that the HR team are completely familiar with the published guidance.  What is the difference for example between self-isolation and shielding? Does the guidance change if it relates to the employee or a member of their household? Who is a ‘vulnerable’ person and who is an ‘extremely vulnerable’ person?   What is the significance of the distinction?

The reason why this knowledge is essential is because to succeed in a claim for automatic unfair dismissal and/or detriment arising as a result of their conduct in respect of a health and safety matter, an employee has to show that they ‘reasonably believed’ a danger to be ‘serious and imminent’.  That will depend on all the circumstances, including the action taken by the employer within the workplace and the relevant Guidance issued. If there has been demonstrable compliance by the employer with such Guidance, it will help establish that the belief as to the imminent harm is not reasonably held, even if it is genuine.

In addition, the conduct of the employee (staying away from work, insisting that facemasks are worn by all) also has to be ‘appropriate’ in order for any claim to be successful. What is ‘appropriate’ is an objective (not subjective) test.  It is not designed to protect employees who act unreasonably but familiarity with all of the guidance will help determine what is reasonable or not.  The question of what may amount to an appropriate step is viewed in all the circumstances.  In the circumstances it may be prudent to undertake a specific risk assessment for the employee in question to understand the ‘serious and imminent’ threat they feel they are being subjected to and give guidance on steps that may be taken to protect themselves which is something less than the conduct they are asserting is ‘appropriate’.

Each case will turn on its facts but the secret to addressing these sort of concerns that are raised will be complete familiarity with relevant guidance and reaching out to your occupational health advisor for a well-timed risk assessment.

One further possible impact on this equation is whether or not the UK Government would follow the example set by Germany which has announced today that it will bring forward legislation to enshrine the right to work from home, possibly for one or two days a week, into German law this Autumn.

The team will continue to monitor and report on the situation as it develops. If you have any questions, please contact Linky Trott or any member of the Employment team. To review our previous updates, please click here.

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