I am hearing a lot of tales of people being ordered to work in conditions which they are not confident are safe, in respect of the pandemic.
I am also seeing many people suggesting that The Employment Rights Act s44 should provide protection for any who might refuse to work.
However the employers are engaging protocols in accordance with government guidelines (taking it on the chin, and allowing it to move through the population*).
To what extent are those protocols likely to invalidate the s44 defence?
[*OK, they have moved on a bit from there now]
It is difficult. The issue has to be whether in fact a workplace is safe to an appropriate level. That assessment is difficult enough - bordering on impossible.
The assessment of an employee deserves a proper respect - but that should not be decisive.
I have friends who feel unsafe unlocking the front door for two minutes to let you in, and others who only lock their doors when leaving overnight, and others who never lock their doors. None of these 'feeling safe' approaches are likely to be justifiable looked at objectively. Should it be correct for the judgments of others to be restricted by them?
@hairyloon - which part of https://www.legislation.gov.uk/ukpga/1996/18/section/44 do you think may assist?
@hairyloon - which part of https://www.legislation.gov.uk/ukpga/1996/18/section/44 do you think may assist?
The bit that says:
"An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that—
(e)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."
In which case, I hope that the persons telling the tales you are hearing and making the suggestions that you are seeing are making it clear that those parts of the section set some pretty high bars that have to be cleared.
The legislation cited does not place the decision within the employee's assessment. Such an assessment has to be reasonable - which imports an objecting external element.
The legislation cited does not place the decision within the employee's assessment. Such an assessment has to be reasonable - which imports an objecting external element.
Objecting, or objective?
In which case, I hope that the persons telling the tales you are hearing and making the suggestions that you are seeing are making it clear that those parts of the section set some pretty high bars that have to be cleared.
Meaning "Serious" and "Imminent"?
why pick out just a word or two, and not consider each and every element of the whole? There are at least half a dozen hurdles to clear.
... 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
The other phrases seem to me unambiguous and not particularly high, but does "Serious" mean not trivial or does it mean not in jest, and if not trivial, how trivial is trivial?
Likewise how imminent is imminent?
I can see people arguing that the danger is not imminent because it takes several weeks to kill...
The language of Parliamentary drafting should indeed be unambiguous, but words such as "reasonably believed" and "appropriate" leave a good deal of room for argument.
I am sure that when considering the things you are hearing and seeing you are noting that there are several hurdles, every single one of which has to be cleared. But while it is good that you understand them, I think that you may underestimate them.
I discuss law: I tend not to advise.
While there is clear scope for argument as to what is unreasonable and what is unreasonable, do you suggest that there is space in between?
As for what is "Appropriate", perhaps people would be better served to look a little further back in the act to s44d
"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."
That leaves only the bar of "reasonable belief" to get over and the "Reasonable expectation" to get around.
Slightly tangential question: is the risk of stress a serious and imminent danger? Presuming that the stressful situation looms large in the immediate future.
if there is scope for argument as to what is or is not reasonable or unreasonable, then it must follow that there is space in between the two positions, if only on the basis that they are separated by some distance.
You continue to underestimate, so it is good that you do not advise. You should take care when discussing not to be taken to advise.
if there is scope for argument as to what is or is not reasonable or unreasonable, then it must follow that there is space in between the two positions...
There was a chap called Schrödinger who made a similar observation about the state of his cat...
Although apparently he put forward that proposal to demonstrate the ridiculousness of it.
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