Although many employees have been back at work for some time – and some never left – for others the lifting of restrictions may remove any lingering constraints preventing them going back to work. For the significant proportion of employees who have been able to work from home throughout the pandemic, the further easing of restrictions may also see more people returning to the office.

Nonetheless, there will be some people who will still have significant concerns about the potential health risks of returning to the office, from increasing their interaction with colleagues and customers and from resuming their commute. In this article, we consider whether employers can lawfully discipline and dismiss employees who refuse to return for this reason.

Legal landscape

Employees have certain protections under the Employment Act 2000 (“Act”) which will be relevant here. In general, the Act entitles employers to take disciplinary action when it is reasonable to do so in all the circumstances. An employer that has put in place appropriate health and safety measures, in compliance with the latest Government guidance, will likely be on firm ground in issuing a warning to employees who refuse to return, although each employee’s individual circumstances should still be considered. Where an employee has been given a written warning, setting out the misconduct complained of and instructions as to how to improve their conduct (i.e. by returning to work), the Act permits the employer to dismiss the employee if they commit a further act of misconduct within the following six months, or four such acts within a twelve-month period.

This is the general position, but the Act also sets out certain reasons for which dismissal will be automatically unfair. Section 28(1) of the Act states:

“The following do not constitute valid reasons for dismissal or the imposition of disciplinary action—

(g)      an employee who removes himself from a work situation which he reasonably believes presents an imminent and serious danger to life or health;”

Could this mean that it would be unlawful for an employer to dismiss an employee for refusing to return to work due to Covid-related health concerns?

Case law

This is not an issue which has been explored in reported cases in Bermuda in the context of the current pandemic. However, there have been some recent cases in the UK – which has a very similar statutory protection for employees – of which one is of particular interest.

In Rodgers v Leeds Laser Cutting Ltd, the employee worked as a laser operator in a large warehouse, a space which he typically shared with four colleagues. At the beginning of the pandemic, a colleague had exhibited signs of Covid and had self-isolated. The employer had carried out a risk assessment and implemented a number of Covid-safe practices, including social distancing, requiring face coverings and enhancing disinfectant protocols. Shortly after the commencement of the first national lockdown, Mr Rodgers messaged to inform his manager that he would not return to work until the national lockdown had eased, as he was worried about his children (a young child with sickle-cell anemia and a baby) catching the virus. He did not return and a month later was dismissed.

Based on its factual findings, the Employment Judge held that the statutory protection was not engaged. Although Mr Rodgers was found to have a genuine concern about the risk the pandemic posed in the world at large, the Tribunal did not accept that he believed there were circumstances of serious and imminent danger in his workplace. In his message to his manager, Mr Rodgers had not made mention of any specific dangers in the workplace and he had not requested any improvements as a condition of his return. Further, he intended to remain away from work for the duration of the lockdown, rather than until any specific issues in the workplace has been remedied.

The Tribunal also found that it was not reasonable for Mr Rodgers to believe that his workplace posed a serious and imminent danger. It took into account here that it was not difficult for employees to socially distance in the workplace and that the employer had implemented recommended workplace safety measures, which it had communicated to staff.

Summary

Although this decision is not a binding precedent and turned on its specific facts, it is a useful illustration, as the similarity between the UK and Bermuda legislation means that a Tribunal in Bermuda would likely follow a similar legal analysis. In particular, it is a good reminder that an employee’s professed health and safety concerns must be reasonable, which should be judged on the basis of the facts and circumstances at the relevant time.

It also demonstrates the importance of employers implementing Covid-safe measures, as doing so will make it difficult for employees to establish a reasonable belief that the workplace presents an imminent and serious danger to their health. Steps the employer has taken to communicate those measures and the manner it responds to concerns raised by staff will also be key factors.

Anyone with questions about the issues discussed in this article can contact a member of our Employment and Immigration Practice: Bradley Houlston ([email protected]) or Jordan Knight ([email protected]).

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