As Britain gears up to go back to work, the issue of whether employees can refuse to carry out certain tasks (or to work at all) will come to the fore, as it has in other countries where the lockdown has been lifted. The unions are already making it an issue. Clearly people will say, with justification, that they will not work without appropriate social or physical distancing. They may also argue that they are not willing to work without personal protective equipment. Or that they do not want to go to work on public transport. There is likely to be a great deal of litigation and some hard cases to be decided. So how does the law strike the necessary balance? This is not the sort of issue which received very much attention in pre Covid-19 life but there are some precedents.
Under the contract of employment, the employee is obliged to follow reasonable instructions (this is the so-called managerial prerogative) but the devil is in the detail of what is reasonable. In the Chakarian case in 1930 the facts were extreme. The employer bank ordered its employee, an Armenian, to stay in Constantinople, where he had previously been sentenced to death. The House of Lords was clear that this was not a reasonable instruction and he did not have to obey it. On the other side of the line, it was held unreasonable for an employee to refuse an order to visit Ireland because of a general fear of IRA activity during the Troubles. It all depends on the precise facts of the case.
It may be a fair dismissal to terminate an employee for refusing a reasonable instruction but all other ways of dealing with the defiance of the order (such as a warning) should be exhausted first. A tribunal considering this would want to be satisfied that the employer made clear exactly what the employee had to do and crucially took reasonable precautions for their health and safety and considered whether dismissal could be justified. Complying with longstanding government guidance from the Advisory, Conciliation and Arbitration Service on the procedure for dismissal would be crucial. The lack of clarity in the current Covid-19 guidance does not help.
Of course, dismissal arises not only when an employee is given notice but also where the employer behaves in a way which is a fundamental breach of contract. Asking an employee to work in circumstances of danger may constitute constructive dismissal, for which an unfair dismissal claim may be brought.
What if the employee says no to working and just leaves the workplace? By s44 of the Employment Rights Act, an employer cannot subject someone to a detriment (say, loss of wages or discipline) if the worker left the place of work—or any dangerous part of the place of work—in circumstances of danger which was serious and imminent, and which he/she could not reasonably be expected to avert. These principles derive from EU law though they persist post-Brexit for now.
So, the issue of particular relevance today is what danger is sufficiently “serious and imminent.” This depends on what facilities are available to the employee to avoid the danger. This can relate to dangers caused by the behaviour of fellow employees, not just the employer. An employee can bring a claim for compensation in the employment tribunal if they consider that they are unreasonably dismissed or have wages withheld.
Importantly, other than dismissal, a person may be also furloughed if they refuse to carry out a duty because of fears related to Covid-19. Paragraph 6.1 of the Treasury Direction introducing the scheme defines a “furloughed employee” as someone who is not working “by reason of circumstances arising as a result of coronavirus or coronavirus disease.” This may include the employee who refuses to attend work due to fears over their health and safety.
There are also potential discrimination issues which should be considered. Employees must not be selected for dismissal or furlough on prohibited grounds such as race, sex or age. There is also a right to life under the European Convention of Human Rights, which could be argued to apply here in extreme circumstances of requiring a person to work in conditions of danger.
Judging in a particular case where the balance should be struck will not be easy. The penalties could be high for an employer who gets it wrong.
John Bowers QC is a British barrister and part-time judge. He is Principal of Brasenose College, Oxford
