Listen to Petros Elia, organizer and co-founder of UVW, explain Section 44 of the Employment Rights Act 1996, as well as other relevant legislation that may protect you in the event that you decide to refuse work.
In the wake of the announcement made by the government on the 11th of May 2020, in which it was confirmed by the Prime Minister that any workers who can’t work remotely are now being expected to return to work, there has been an outpouring of analyses of Sections 44 and 100 of the Employment Rights Act (ERA) 1996 which many people are saying gives workers the right to refuse to work if they are afraid of contracting or transmitting COVID-19.
While in principle they are not wrong to say that section 44 ERA 1996 gives you that right, the interpretation and application of this law is not that simple a matter. Consequently, the following will hopefully provide you with the detail needed to properly understand the law, and specifically, who the law protects and what the law protects them from.
But before we get into the legal nitty gritty it’s important to note that whatever the law says, there is always a real risk that unscrupulous employers will simply flout the law. Therefore, the only way to properly protect yourself if you are considering to refuse to work, is to ensure that you’re in a union which is willing to back you if you do get sacked or punished and to walk off the job with as many of your colleagues as possible so to make sure that you’re in a position to protect yourselves and force your employer’s hand.
In a nutshell the law is as follows:
If you are an employee and you reasonably believe that by working or by travelling to and from work you would be at risk of contracting or transmitting COVID-19 and you believe that risk is a serious and imminent danger to yourself, your colleagues, flat mates or members of the public, and that you cannot avoid that risk by working or travelling to and from work, then you have a right to refuse to work and to not be punished or sacked by your employer.
Now for the legal nitty gritty.
SECTION 44 & CORONAVIRUS
By s.44(1)(d) and s.100(1)(d) ERA, employees have the right not to be subjected to any detriment by any act, or any deliberate failure to act by their employer, and the right not to be dismissed on the ground that, “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work”.
Similarly, s.44(1)(e) and s.100(1)(e) provide some protection for employees where, “in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”What this means for you
WHAT THIS MEANS
Am I protected if I’m a self-employed contractor or a self-employed worker like a courier or Uber driver?
No, the legislation only protects ‘employees’, not self-employed workers (known in law as ‘limb (b) workers’) which most couriers or Uber drivers would be.
However, we believe the restrictions of the legislation to only protect ‘employees’ is potentially incompatible with Article 3(a) of the Council Directive of 12 June 1989 “on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EEC)” and the Temporary Workers Directive 91/383 which requires agency workers, who are often not employees under UK law, to receive the same level of health and safety protection as direct employees of the place where they work. We also believe the legislation could be potentially incompatible with the European Court of Justice case C-316/13, Fenoll v Centre D’Aide par le Travail “La Jouvene” EU:C:2015:200 -.
However, as it stands, only employees are protected.
Am I automatically protected by the legislation? Or do I need to have been working in my job for a certain amount of time before I’m covered?
No, there is no qualifying period needed for protection under sections 44 & 100 ERA 1996, i.e., it does not matter how long you’ve been employed for, the legislation applies equally to someone who has been on the job for 20 years or to someone who has just been offered and accepted the job regardless of whether they have even worked their first day or not. This is the same for discrimination law.
What if my employer takes precautions?
For the purpose of this legislation, the virus can pose a serious and imminent danger no matter what precautions the employer takes to mitigate risks. In our view, this means that workers have a right to refuse to work irrespective of whatever measures an employer might take, because it is not a risk that can be fully mitigated.
Why the terminology ‘reasonably believe’ is important
What happens if I refuse to work but my boss says I’m being unreasonable and there is no serious danger?
What matters when refusing to work, and in citing sections 44 and 100 of the ERA in doing so, is the reasonableness of your belief in the ‘serious and imminent danger’ you would find yourself in and unable to avert unless you refused to work. It does not matter if the employer, or even the findings of their risk assessment, disagrees with you over the imminence and seriousness of the risk in question. In other words, it is your belief that counts, not the employer’s opinion.
This is confirmed in the case of Oudahar v Esporta Group Ltd  IRLR 730 EAT.
But how can I refuse if my boss says the work I do is lawful and complies with Health and Safety law?
Yet again, and this follows the previous point, it does not matter that the work you do is lawful or permitted under health and safety law. You can nevertheless still possess a ‘reasonable belief’ that you are being, or would be, exposed to a serious and imminent danger by working.
This is confirmed in the case of Joao v Jurys Hotel Management UK Ltd UKEAT/0210/11What employer actions mean for you
What employer actions mean for you.
On a practical level, while it doesn’t matter if your employer provides PPE or carries out a risk assessment/enforce social distancing measures at work, it will only strengthen your case if they haven’t. As an additional note, any risk assessment should be carried out with you. This means they need to talk to you and ask questions.
If they haven’t done these things, then it it worth mentioning these things in your case. “The risk has been heightened by the employer’s failure to carry out a risk assessment in conjunction with me, provide PPE, hand gel, social distancing guidelines, etc.”
There is a statutory obligation to provide employees with PPE found in the Personal Protective Equipment at Work Regulations 1992.
Am I legally required to tell my boss that I’m refusing to work out of fear of catching or transmitting COVID and if I fail to do so does that mean the law wouldn’t protect me?
We believe it is always wise to inform your employer. However, if you do not tell them the reason why you are not attending and they dismiss you without checking with you first the reason for your absence you may still be protected.
The Employment Appeal Tribunal in the case of Oudahar v Esporta Group Ltd ruled the following:
“…an employer would be equally liable if he had the opportunity to find out the reason for the absence and chose not to take it; or was indifferent to the reason for the employee’s absence, or chose not to find out…we see no difference in principle between the employer who positively disagrees with the employee and the employer who is indifferent or does not bother to find out. In each case it seems to us that the statutory intention is that the employee should be protected..
The EAT even addressed the suggestion that it would be unfair for an employer to be liable under the legislation even though the employee never mentioned any danger. Their response is as follows: “We acknowledge that this is a theoretical possibility. In practice, however, the likelihood that this would occur is vanishingly small provided that an employer carries out a reasonable investigation before dismissing.”
But what if the government or my employer says Coronavirus is no longer dangerous enough to stop me from working?
Prevailing legal consensus is that a belief in the serious and imminent danger of Coronavirus would be considered reasonable. Coronavirus is certainly ‘serious’, it being a highly debilitating and deadly virus which has already killed over 30,000 people in the UK in a few months, and this is not to mention the global death toll. And ‘danger’ is certainly imminent, given that we are in the midst of a global pandemic in which Coronavirus can be transmitted through respiratory droplets that have the capacity to remain airborne for up to 3 hours, and on some surfaces for up to 3 days. Furthermore, it can be carried by people asymptomatically, meaning there is no way of being certain who is carrying it and contagious.
The reasonableness of anyone’s belief in the ‘serious and imminent danger’ of Coronavirus is reinforced by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, SI 2020/350. These regulations have been stated to be made ‘in response to the serious and imminent threat to public health’ posed by Coronavirus.
Can I refuse to work if I believe that my attendance could endanger my family, friends or other people I’m regularly in contact with who aren’t my colleagues?
Yes, the reference to “other persons” in section 44 (e) is not restricted to work colleagues, but extends to risks posed to people other than colleagues – for instance, flatmates, family or members of the public.
Therefore, sections 44 & 100 ERA 1996 would potentially protect you for self-isolating if you were doing so to protect not only yourself, but others, especially if you were symptomatic, and even if you were not.
This is confirmed in the case of Masiak v City Restaurants  IRLR 780.
Are there things I can reference which would make my belief more reasonable?
Yes, if the reasonableness of your belief was brought into question either by your employer, or later at a tribunal, then the following things could support you in your arguments that your belief was reasonable:
Consultation when there is a recognised trade union 1
There is a duty on employers where there is a recognized trade union to consult with health and safety representatives of the trade union.
If you work somewhere with a recognized trade union, you can hold your employer to account if they have not conducted a consultation with the health and safety representatives of that recognized trade union.
Consultation when there is no recognised trade union 2
Even if there is no recognized trade union, there is still an obligation to consult with health and safety representatives even if the trade union is not recognized. This obligation is found in the Health and Safety Consultation with Employees Regulations, 1996.
If there is no recognized trade union, there is still an obligation for the employer to consult where there is a health and safety rep present.Will I get paid if I refuse to work?
Will I get paid if I refuse to work?
Is it legal for my boss to withhold my wages if I refuse to work under section 44?
No, the word ‘detriment’ in section 44 ERA 1996 includes the withholding of your wages. And if you refused to work under section 44 and had your wages withheld, you would be within your rights to make a legal claim against your employer for an unlawful deduction of wages. This claim would be made under section 13 ERA 1996 in the employment tribunal. You could also bring a claim of breach of contract in the County Court.
In respect of any claim to recover your wages, the question for the Court will be whether you were ready and willing to do the job, but were unable to do so due to an ‘‘unavoidable impediment’’, or whether being absent from work was ‘‘involuntary’’ or whether you deliberately and/or unreasonably refused to attend work. This comes from Lord Justice Coulson’s dicta at paragraph 52 in North West Anglia NHS Foundation Trust v Gregg  EWCA Civ 387. In paragraph 53, Lord Coulson indicated that the term ‘unavoidable’ should not be construed too narrowly by confining it to an act of God or some other form of accidental occurrence preventing you from attending work.
In other words, if you deliberately and/or unreasonably refused to attend work and your employer withholds your wages this would not be unlawful. Otherwise, it might be unlawful.
However, if the reason for not working is entirely extraneous to the control of the employer, i.e. if they cannot take any measures to minimise the risk of transmission of COVID-19 to a degree deemed safe by you, then it is unlikely that you’ll be able to reclaim your wages. However, if you can point to clear health and safety failures which led to your refusal to work, such as those above, then your claim for an unlawful deduction of wages is likely to succeed.
If you believe your employer’s health and safety breaches are what led you to refuse to work then you might be able to apply to the High Court for what is called an ‘interlocutory mandatory injunction’ to try and recover your wages. If successful, this would force your employer to pay your wages until the health and safety measures were addressed and it was safe for you to return to work. However, those loss of wages would need to be shown to have caused you significant hardship as a minimum in order to stand a chance of winning.
Applying for this injunction would mean you would not have to wait until an employment tribunal hearing to recover your wages under section 13 ERA 1996, which could take well over a year. By contrast, the injunction can be heard and decided upon within weeks. However, if you lost the injunction application you could be stung with astronomically high legal fees.
Protections carried with your right not to work
Can my employer punish me or dismiss me if I refuse to work under section 44?
No, the word ‘detriment’ in section 44 ERA 1996 refers to any disadvantage you may suffer as a result of asserting your rights under section 44. Similarly section 100 ERA 1995 protects you from being dismissed for exercising your rights under section 44. This means that your employer cannot lawfully dismiss you or suspend you, reduce your hours, demote you, shout at you or do anything else that is considered a disadvantage or punishment. If they do you would be entitled to uncapped compensation in tribunal.
What if my employer punishes me after I refuse to work and I don’t want to work for them anymore?
If your employer punishes you in some way in retaliation for exercising your rights under section 44 or 100 then, depending on exactly what they did to you and why, you could resign and claim you had been what is called ‘automatically constructively dismissed’.
Also, if your employer generally fails to ensure you can work in a safe environment and in a safe way then you could resign and claim unfair dismissal if you have been working for more than 2 years.
Understanding the difference between an individual and collective right
It is important to understand that the right to refuse work under Section 44 is an individual right, meaning that people need to exercise this right on an individual basis.
In our view, however, individual rights are not invalidated by exercising them individually at the same time. Simply by virtue of several people walking out at the same time doesn’t amount to unofficial industrial action as long as each individual holds the reasonable belief that they are in serious and imminent danger if they continue to work. We would argue you don’t need to worry about this so long as each individual reasonably believes they are in danger.
What if I’m accused of organising a strike?
It is important that any group of individuals who simultaneously exercise their rights under section 44 ERA 1996 in refusing to work do not present their decision as a form of industrial action. If it was construed this way, and a lawful industrial ballot had not taken place, it would be considered unofficial industrial action and you would be deprived of your rights to complain of unfair dismissal under Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). This is covered in Sections 237–238 TULRCA. Likewise, if a union were to be considered to have induced its members to stop working without a lawful industrial ballot having been held, the union may be held vicariously liable for a claim of damages for what’s called, ‘tortious procurement of breach of contract’.
In short, if a union simply informs its members of their rights under sections 44 and 100 ERA 1996, it should not be found liable for any unlawful conduct.
A couple of other things to bear in mind and things that you can cite to your employer:
Your statutory duty as an employee is also important
There is also a duty on employees in the Health and Safety at Work Act 1974, Section 8, where employees have a legal responsibility to not do anything that might place themselves or other people at risk.
In addition to everything also, you can also argue that you feel that you have a statutory obligation to protect yourself and others, and that if you go to work and work you might be breaching statutory legislation which instructs you to not put others at risk.