Refusing to Attend the Workplace for Fear of Coronavirus – A Reasonable Excuse?

Key Contact: Claire Knowles

Author: Adam McGlynn

Most employees will need to attend the workplace to some extent during their employment. Perhaps it is their normal place of work and/or their duties can only be performed at certain locations. Even those who work more flexibly may have meetings, events, or administrative tasks which occasionally require their presence. Over the course of the Coronavirus pandemic, Government guidance on workplace attendance has been uncertain at best, however, as employment claims from 2020 start reaching their conclusions, we now have some further clarity on how tribunals are approaching this question.

Employees are protected against detriment or dismissal in certain health and safety situations including where they leave their workplace, refuse to return to it, or take other steps to protect themselves because they reasonably believe there is serious and imminent danger. The relevance of this protection has been widely discussed in relation to its application during the Coronavirus pandemic. The recent case of Rodgers v Leeds Laser Cutting examined to what extent belief in such a level of danger could or, in this case, could not be reasonable.

Rodgers v Leeds Laser Cutting

Mr Rodgers worked as a laser operator, a job that could only be done on-site. A week after the first national lockdown on 23 March 2020, Mr Rodgers informed his manager that he would no longer attend the workplace until the lockdown had eased because he was concerned about transmitting COVID-19 to his children. He was dismissed shortly afterwards and he claimed this dismissal was automatically unfair as it was in response to him exercising his rights to protect himself.

The tribunal found that, when Mr Rodgers took action, no reasonable belief in serious and imminent workplace danger could be established. Particular learnings from the decision include:

• The company had pro-actively sought external health and safety support to ensure the workplace was safe and complaint with Government guidelines at the time.
• Mr Rodgers did not raise any specific concerns with the state of the workplace itself and did not seek to take any steps which could resolve his concerns before absenting himself without notice.
• Mr Rodgers breached self-isolation guidance around the time of absenting himself, demonstrating that his concern about COVID-19 was not quite as substantial as claimed.

The Tribunal’s decision

The Tribunal concluded that the simple fact that the Coronavirus pandemic exists, is not sufficient in itself to excuse employees from the workplace. In particular, it may not be reasonable to believe there is serious and imminent danger if the employer has taken safety precautions recommended under Government guidance.

As claims of this nature have not yet reached higher than a first-instance judgment in the Employment Tribunal, future claims will not necessarily be bound by the approach of the tribunal in Rodgers v Leeds Laser Cutting. Additionally, there are a number of fact specific distinctions which may impact disputes around attending the workplace. For example, reasonable belief at the time will be dependent on Government guidance applicable to the employer’s sector (which is subject to change e.g. stronger, more restrictive guidance could give rise to a more reasonable belief in danger) and the steps the employer has taken in practice to comply with the Government guidance and create a safe workplace. Covid-19 transmission rates, vaccination rates, shielding guidance, and numerous other factors could also impact the reasonableness of a belief that there is serious and imminent danger.

Employees may have concerns about returning to the workplace, but a transparent and supportive approach can help reassure staff that their safety is being prioritised. Consulting with staff can provide clarity on employee concerns and guide the employer on any further safety measures which may be necessary, particularly where the employee may have a disability which requires reasonable adjustments to be made.

If you would like further advice on managing issues in relation to employees returning to the workplace, please feel free to contact our Employment Team.

Maternity and Parental Leave – Time for Reform?

Key Contact: Claire Knowles

Author: Yannick Ramsamy

Maternity Action have issued a briefing calling for substantial reform to maternity and parental leave legislation.

The May 2021 briefing has been issued in response to Maternity Action’s concerns regarding:

• low take up of shared parental leave (SPL) since the introduction of the scheme in April 2015. Data provided by the business minister Paul Scully in response to a parliamentary question in February 2021 refers to take up of SPL by eligible fathers being only 3.6% in 2019/20. A figure significantly below the government’s previously expressed target of 25%;

• research indicating that the low take up of SPL has been worsened by the impact of the Covid-19 pandemic. The briefing refers to a report on the gendered impact of Covid-19 prepared by the Women and Equalities Committee in February 2021 which states that the gender gap in total childcare time increased during the pandemic, with women devoting more hours to childcare compared to men, and mothers being more likely than fathers to be asked to be furloughed. Maternity Action have expressed the view that this gendered impact is partly due to lockdowns in certain sectors which tend to be female dominated e.g. hospitality, retail and personal care; and

• the general complexity of SPL being a barrier to take up for parents e.g. calculating the amount of SPL available for each parent and determining the applicable SPL period.

Key Reforms Proposed

As a result of the above issues, Maternity Action have proposed the following reforms:  

• A new system of parental leave which provides for individual and specifically non-transferable rights for each parent.

• A “6+6+6” model of paid leave, which replaces the existing statutory maternity leave and SPL scheme as follows:
  • the first 6 months of maternity leave being reserved for the mother;
  • a further 6 months of non-transferable parental leave can then be taken by the mother i.e. this would be in addition to the first 6 months of maternity leave, meaning the mother has a total leave entitlement of 12 months; and
  • 6 months of non-transferable parental leave can be taken by the father, in addition to the mother’s 12 month leave period.

• Under the new system the additional parental leave periods for the mother and father could be taken concurrently or consecutively, all in one go, or in smaller blocks of weeks or months, up to 18 months after the birth.

The briefing also recommends that:

• maternity, paternity and parental leave and pay should be day one rights for all working parents, regardless of their employment status; and

• statutory leave pay should be increased on a staggered basis to at least the national minimum wage level, the real living wage level and then eventually wage-replacement levels.

One of the principle rationales behind these proposals is based on the majority of mothers being likely to use up their total maternity leave entitlement in order to physically and mentally recover from their pregnancy and childbirth. This means in practice (and as appears to be demonstrated in recent statistics) there is limited interest amongst parents in taking up SPL and therefore also reduced opportunity for fathers to benefit beyond the 2 weeks’ ordinary paternity leave and participate in parenting during the early life of their children.

Whilst the government has previously acknowledged the complexity of SPL and the barriers to take up, it remains to be seen to what extent it will factor in Maternity Action’s proposals as part of any future legislative maternity and parental leave reform. At this stage, and in light of the government delaying its Employment Bill for at least a year, in our view it is unlikely that any changes will be implemented in the near future meaning employers are not required to take any immediate steps. Notwithstanding this, employers continue to have the option of implementing enhanced maternity and parental leave policies which go beyond the current statutory framework in order to assist employees with their childcare commitments.

If you have any queries regarding maternity and parental leave benefits or require support in relation to managing these entitlements amongst your workforce, please contact our Employment Team.