The Coronavirus: Rights to Leave the Workplace and Strikes

Last Monday, Boris Johnson issued a stark call for people to stay at home. Great Britain was officially in “lockdown”. That call applies to all workers, with the exception of those regarded as “essential”. Since then Matthew Hancock has suggested that workers should continue to work if it cannot be done from home. Boris Johnson vividly acknowledged that: “The coronavirus is the biggest threat this country has faced for decades and this country is not alone… All over the world we are seeing the devastating impact of this invisible killer.” That threat, and the need to avert overburdening the NHS led to him issuing the following instruction:

“From this evening I must give the British people a very simple instruction – you must stay at home. Because the critical thing we must do is stop the disease spreading between households. That is why people will only be allowed to leave their home for the following very limited purposes: shopping for basic necessities, as infrequently as possible; one form of exercise a day – for example a run, walk, or cycle – alone or with members of your household; any medical need, to provide care or to help a vulnerable person; and travelling to and from work, but only where this is absolutely necessary and cannot be done from home.”

The health and safety justification behind that call requires little elaboration in light of the headlines appearing on our screens and scenes from around the world. However, it puts into sharp focus workers’ individual rights to protect their safety emanating from the Framework Directive and now found in Sections 44 and 100 of the Employment Rights Act 1996 (ERA). Many will ask if it is “absolutely necessary” for them to attend work? What about the potential risks to them and their families if they are required to commute to and from work via public transport? There will inevitably be some degree of confusion over the ban on gatherings of three or more people, and whether it is feasible to work as part of a team without forming a group.

A second issue is how the individual rights to leave the workplace intersect with trade union liability for strikes. What if a union advises its members that they are not obliged to attend work for health and safety reasons connected with the Coronavirus? How does that fit with the law on strikes?

Leaving the Workplace for Health and Safety Reasons

Article 11(4) of the Framework Directive (89/391/EEC), introduced as a health and safety measure, specifies that neither workers nor workers’ representatives should be placed at a disadvantage as a consequence of their exercising rights under that Directive. It also requires the employer to inform workers of the risks of serious and imminent danger and to take action to enable workers to stop or leave work in the event of a “serious, imminent and unavoidable danger” (Article 8). Materially Article 8(4) provides:

“Workers who, in the event of serious, imminent and unavoidable danger, leave their workstation and/or a dangerous area may not be placed at any disadvantage because of their action and must be protected against any harmful and unjustified consequences, in accordance with national laws and/or practices”.

These rights are now found in Sections 44 (protection from detriment) and 100 (automatic unfair dismissal) of ERA. It is automatically unfair to dismiss or select for redundancy or otherwise to subject an employee to a detriment in specified circumstances.

These rights should be read together with other rights emanating in EU law. Under the Personal Protective Equipment at Work Regulations 1992, implementing the PPE Directive 89/656, every employer “shall” ensure that suitable personal protective equipment is provided to their employees who may be exposed to “a risk to their health or safety while at work” except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective (Regulation 4(1)). This generates issues in relation to Coronavirus such as: have employers undertaken appropriate risk assessments? Do their employees have access to adequate PPE given the short supply of face masks and hand sanitiser? In the present pandemic, employees could potentially refuse to undertake specific duties where this would bring them into contact with members of the public unless adequate PPE was provided.

Again implementing EU law, Regulation 11 of the Workplace (Health , Safety and Welfare) Regulations 1992 requires that workstations are “suitable” for any person who works there and Regulation 3 of the Management of Health and Safety Regulations 1999 requires employers to undertake a suitable and sufficient assessment of the risks to the health and safety of employees and others who are affected by the conduct of its undertaking. Questions will arise as to whether employers have complied with their health and safety duties, such as the obligations to provide sufficient PPE, and have undertaken appropriate risk assessments.

More pragmatically, these matters should be the subject of collective consultation. The Safety Representatives and Safety Committees Regulations 1977 (the 1977 Regulations) require consultation with safety representatives where there is a recognised trade union in “promoting and developing measures to ensure the health and safety at work of employees” (Section 2(6) Health and Safety at Work etc Act 1974; Regulation 4A of the 1977 Regulations). Parallel provisions require the provisions of safety and information to, and consultation with, representatives where there is no recognised union: see the Health and Safety (Consultation with Employees) Regulations 1996. These duties, too, give effect to the Framework Directive, which requires consultation on “all questions relating to health and safety at work” (Article 11).

In relation to the rights in Sections 44 and 100, no qualifying period of employment is needed, but the rights are restricted to employees. This creates an anomalous (and indefensible) situation in that limb (b) workers are apparently not covered. It is not clear that such a restriction is compatible with the Framework Directive, which applies to “a person employed by an employer” (Article 3(a)), or the Temporary Workers Directive 91/383 which requires that agency workers, who are often not employees under UK law, receive the same level of health and safety protection from the user undertaking as direct employees. The definition in Article 3 of the Framework Directive is not linked to domestic law, and refers to  an “employment relationship”. As a health and safety measure it should have a broad scope and apply to a wider range of individuals than the UK conception of “employee”, as suggested by how the European Court of Justice has approached ‘worker’ in the related Working Time Directive: see Case C-316/13 Fenoll v Centre D’Aide par le Travail “La Jouvene” EU:C:2015:200 [24]-[27]. We await to see if domestic courts will respond by stretching the definition of “employee” in Sections 44 and 100 .

The individual rights to protection from detriment and dismissal in Section 44 ERA are not confined to trade union representatives but cover six situations. Of particular topical relevance are (d) and (e) which protect employees from detriment or dismissal on the grounds that:

(d)     in circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, they left (or proposed to leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of their place of work, or

(e)     in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themself or other persons from the danger.

Category (d) is deliberately framed in wide terms. Where an employee reasonably believes that there are circumstances of danger which are “serious and imminent” they can tell the employer that they plan to leave the workplace, actually leave (this presupposes that they do not have permission to do so), or even refuse to attend for work. Without doubt, exposure to Coronavirus is serious – both for the individual and those they come into contact with. In a pandemic, it is difficult to regard it as something which is not imminent.

Category (e) is an important right, which may permit individual workers or union representatives to refuse to work until the workplace is made safe. This provision is less precise, and “appropriate steps” is not defined. However, where part of a factory is suspected of being dangerous, an appropriate step would be to refrain from entering that particular area, whilst still being physically present at the workplace.

The reference to “other persons” in (e) is not restricted to work colleagues: see Masiak v City Restaurants [1999] IRLR 780 in which a chef in a restaurant refused to cook frozen chicken and phoned an environmental health officer because of his concerns about the risks to customers. Therefore (e) is not confined to the risk to the individual employee, but extends to risks to persons other than colleagues – for instance, their family or members of the public. Employees could therefore heed Boris Johnson’s instruction and comply with the lock down, effectively self-isolating to protect others most obviously when they have symptoms but even where they do not.

Under category (e), the appropriateness of the steps is to be judged by reference to a consideration of all the circumstances including the employee’s knowledge of the facts, as well as the facilities and advice available to them at the time: see Section 44(2) and Section 100(2) ERA. That would include the statement by Boris Johnson and the stated reasons for the lockdown. But the employer has a defence if the employee’s actions were so negligent that a reasonable employer “might” have treated the employee as the employer in fact did (Section 44(3), Section 100(3)). No such “reasonable means” limitation applies to (d), but there is a potential application to (e) where the steps must be “appropriate” ones.

The question remains, could an employee use these provisions to refuse to work, or commute into work to avoid either themselves being infected, or infecting others?

The fact that the relevant circumstance is lawful or a permitted health and safety practice is not a defence. An employee can nevertheless still possess a reasonable belief that they are being exposed to a serious and imminent danger: see Joao v Jurys Hotel Management UK Ltd UKEAT/0210/11 (complaint about working nine consecutive nights fell within the subsection regardless of whether it was lawful under Regulation 11(2)(b) the Working Time Regulations 1998, SI 1998/1833, Regulation 11(2)(b)). It is not enough for the employer to simply disagree with the employee’s assessment of the situation; if the employee is found to have possessed a reasonable belief, they will still qualify for protection: Oudahar v Esporta Group Ltd [2011] IRLR 730 EAT.

In light of what we know and events unfolding in other countries, the relevant health and safety duties, and the current lockdown, the likelihood is that an Employment Tribunal would accept that an employee, fearful of infecting others or being infected, did possess a reasonable belief that either being at work or even commuting to and from work placed them or their families at risk of serious and imminent danger. Such a conclusion is reinforced by the recent Regulations, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, SI 2020/350, which state they were made “in response to the serious and imminent threat to public health” posed by Coronavirus. Those concerns would be compounded if employees believe that they might be “spreaders”, where they display some mild symptoms, or where the employer has not provided sufficient PPE or otherwise complied with its health and safety duties so as to minimise the risk of contracting Coronavirus (such as face masks, gloves, hand sanitiser). However analysed, these sorts of concerns are fortified by the day through Ministerial statements all to the same effect, justifying the necessity of a nationwide lockdown and telling people to stay at home.

So far as individual rights are concerned, provided that an individual can overcome the issue of employment status, the protection is there. None of the acts which are protected under Sections 44 and 100 should be treated as industrial action so as potentially to deprive the employees of their rights to complain of unfair dismissal under Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), Sections 237–238.

Rights to leave and industrial action

There remains an uneasy tension between these individually framed rights and freedom of association. At times of crisis members inevitably look to their trade union for advice and support. However, the problem is that if a trade union is seen to be doing something which might constitute inducing members to abstain from work then problems arise. Taking industrial action as a means of protesting against working conditions would not amount to “reasonable means” for the purpose of Section 100(1)(c) ERA: Balfour Kilpatrick Ltd v Acheson [2003] IRLR 683 EAT (summary here). In that case, employees collectively withheld their labour after asking management for the afternoon off so that they could dry out (their boots and overalls were soaking wet, fears were expressed about the risk of working in wet conditions such as the obvious dangers of slipping and tripping hazards, as well as other risks including exposure to Weils disease). The problem here is the hazy boundary between exercising rights under Sections 44 and 100 ERA and taking industrial action. As the EAT observed in Norris v LFEPA [2013] IRLR 428, “it is unnatural to refer to a single person ‘taking part in’ action undertaken by no one else: it is like one hand clapping”. Where an individual withholds their labour in combination with others, then this is likely to cross the line.

Section 244 TULRCA broadly defines the menu of items capable of constituting a trade dispute which include not only terms and conditions of employment, but also “the physical conditions in which any workers are required to work”. But if a trade union seeks to induce its members to withdraw their labour on health and safety grounds, they nonetheless have to comply with the complex balloting provisions and notification requirements contained in Part V of TULRCA. In a pandemic such as this, this will simply take far too long to organise. The union is required to give seven days’ notice to the employer of its intention to ballot under Section 226A TULRCA. It is then required to conduct a ballot. According to the BEIS Code of Practice on Industrial Action Ballots and Notice to Employers, generally, seven days should be the minimum period where voting papers are sent out and returned by first class post and 14 days where second class post is used (para. 32). After the ballot has taken place, and assuming that the union has met the threshold, it then has to provide the employer with 14 days’ notice of industrial action in accordance with Section 234A TULRCA. That cumbersome process is demonstrably a poor fit with the current situation.

Unions are caught between a rock and a very hard place – Section 20 TULRCA casts the net of vicarious liability so widely that they are likely to be fixed with liability for organising industrial action in breach of Part V and face the prospect of claims for damages. If individuals collectively take matters into their own hands, perhaps in frustration at the delay in addressing matters, then unless Section 100 is engaged, they face the risk that they will be deemed to have participated in “unofficial” industrial action. In those circumstances, Section 237 TULRCA effectively shuts off their right to claim unfair dismissal.

There is a sensible way around this. Consider the position if a trade union advised its members not to work because of the risks presented by Coronavirus, or advised them not to carry out the full range of their duties until their employer supplied adequate PPE. Equally, what if the union, conscious of the perils of Part V, merely provided accurate information to its members in line with government guidance?

The problem is that, on some authorities, what is capable of constituting an inducement has become disconnected with the intent or purpose. But the better view is that merely providing information which is accurate (or at least genuinely believed to be so) should not amount to an inducement. In Torquay Hotel Company Ltd v Cousins [1969] 2 WLR 289 Winn LJ rejected the submission that the provision of “mere advice, warning or information cannot amount to tortious procurement of breach of contract.” In a somewhat contradictory passage, the Court of Appeal reasoned: “… Whilst granting … that a communication which went no further would, in general, not, in the absence of circumstances giving a particular significance, amount to a threat or intimidation, I am unable to understand why it may not be an inducement. In the ordinary meaning of language it would surely be said that a father who told his daughter that her fiancé had been convicted of indecent exposure, had thereby induced her, with or without justification, by truth or by slander, to break her engagement. A man who writes to his mother-in-law telling her that the central heating in his house has broken down may thereby induce her to cancel an intended visit.” These analogies are a little odd, to put it politely. Surely the daughter would be outraged if the father kept quiet about the conviction (it appears not to matter that the information provided was true). Equally, the mother-in-law might want to know that the central heating had broken down if planning a visit in the midst of winter. At the very least, she could be sure to pack extra warm clothing, or be alive to the fact that there was no hot water to take a bath. It can be seen that anything which is capable of being perceived as a “nod and a wink” by a union to persuade members to withhold their labour is (in theory) open to challenge irrespective of the intent or purpose in providing the information, and worse still irrespective of whether the information provided is factually accurate.

The position is all the more precarious following Govia Thameslink Railway v ASLEF (No. 1) [2016] EWHC 985. This is a rather controversial decision, which considered whether the union had sought to induce drivers to breach their contracts of employment. The dispute initially centred on the employer’s unilateral introduction of 12-car driver only operation trains (“DOO”s) in place of the existing ten-car trains on Gatwick Express without the agreement of the union. The union sent a circular and a text message to members informing them that: “there is no agreement with ASLEF for 12-car DOO for normal working on GTR Southern & Gatwick Express”. This was a factually correct statement – and one which did not tell drivers to do anything at all. On 08 April 2016, the union sent a follow-up text message/newsletter informing members that: “Southern and GEX to impose 12-car DOO working. ASLEF to ballot for industrial action. Details to follow.” Again, some might consider that there is nothing inherently improper or otherwise objectionable about a trade union advising members that it plans to hold a ballot. The obvious point is that reference to a ballot is industrial shorthand for explaining to members that they will only be asked to withdraw their labour once a lawful ballot has taken place (otherwise the reference to the ballot is otiose). On its face, the latest message told members about what the union intended to do in the future. It said nothing about what members should do in the interim. The following day the employer sought to trial the new trains and a solitary driver refused to drive the newly configured train, placing some reliance upon the earlier circular (but not the later newsletter). The employer obtained an interim injunction restraining the union from inducing members from breaching their contracts of employment. The High Court accepted that there was a serious issue to be tried as to whether the union had induced members to breach their contracts of employment.

At the return date, the High Court found that the text message amounted to a “prior call” pursuant to section 233 TULCRA so as to invalidate the subsequent ballot: Govia Thameslink Railway v ASLEF (No. 2) [2016] IRLR 686. As to the requisite intention of the union to induce members to breach their contracts of employment (something which it vociferously denied), the Court considered that it was unnecessary for the union to have positively intended that the text message would be construed as an instruction or request to refuse to drive trains in certain formations.  It was enough for the employer to show that the union’s officers were either “wilfully blinded” or merely “indifferent” as to the consequences of the communications (para. 60).

How does this relate to the current situation?

Both Torquay and Govia should be read in context. For example, Aslef (No. 2) involved a highly disciplined workforce, where working life was extensively regulated by collective agreements. In those circumstances, the Court was prepared to draw an inference that members would find a subtext in the earlier communication. In D. C. Thomson & Co. LD. v Deakin [1952] Ch. 646, Lord Evershed MR acknowledged the “difficult question of distinguishing between what might be called persuasion and what might be called advice, meaning by the latter a mere statement of, or drawing of the attention of the party addressed to, the state of facts as they were…” The problem was that even the CA appeared to countenance that if the advice given was of such a nature that it was “obviously intended to be acted upon” then it might for all practical purposes amount to persuasion. However, if the matter was advice “merely (in the ordinary sense of that word), it seems to me that there can be no complaint about it”.

All of this brings into sharp focus the issue of whether the interplay between the individually framed rights and the potential application of Part V of TULRCA are compliant with the collective rights to freedom of expression and association contained within Articles 10 and 11 ECHR. In Palomo Sanchez v Spain [2011] IRLR 934 the ECtHR stated at [56]:

“… the Court notes that the Inter-American Court of Human Rights … emphasised that freedom of expression was ‘a conditio sine qua non for the development of … trade unions’ … A trade union that does not have the possibility of expressing its ideas freely in this connection would indeed be deprived of an essential means of action. Consequently, for the purpose of guaranteeing the meaningful and effective nature of trade union rights, the national authorities must ensure that disproportionate penalties do not dissuade trade union representatives from seeking to express and defend their members’ interests…”

Here, a slavish adherence to Part V TULRCA would arguably constitute a disproportionate interference with these fundamental rights. A union must be free to impart information to members, particularly in response to requests about matters affecting their health and safety, and their individual rights. In these times, trade unions should be allowed the space to express and impart information freely to members. Exposing a trade union to applications for interim injunction and claims for damages would arguably deprive them of the “essential means” of expressive action. It would be all the more disproportionate to require or even countenance that a union would repudiate such perceived (unintended) action pursuant to Section 21 TULRCA. If individuals are dismissed without the means of seeking an effective remedy, their individual rights under Article 11 are surely infringed.

In addition, it would contradict the fundamental importance of health and safety protection, both in EU and domestic law, if a union could not genuinely advise it members as to their legal rights under Section 44 and Section 100 ERA. Indeed, the edifice of the Framework Directive is built upon both individual and collective rights. In that light, the application of Torquay/Aslef (No. 2) to the current situation is misplaced. If the employer’s behaviour is so unreasonable such as to amount to a repudiatory breach of contract – whether by reference to its failure to comply with the PPE Regulations, or reliance upon its non-delegable duty to provide employees with a safe place and system of work, or breach of the implied term of trust and confidence (or a combination of these) – then the operative reason for refusing to work is the employer’s ongoing repudiatory breach of contract. Liability for inducing breach of contract is after all an accessory liability – a trade union cannot be liable for advising members to act within their contractual rights to withhold their labour which does not itself amount to a breach of contract: see OBG Ltd v Allan [2008] 1 AC 1.

Alternatively, it is possible to argue that in the face of the employer’s repudiatory breach, the contract is suspended on a full or partial basis – on that basis there is arguably no economic tort and Part V of TULRCA is simply not engaged. See Alan L. Bogg, Good Faith in the Contract of Employment: A Case of the English Reserve, 32 Comp. Lab. L. & Pol’y J. 729 (2011). These arguments should be borne in mind whenever information is provided to members. While there is a tension between the system of individualised rights under Sections 44 and 100 and the provisions in Part V of TULRCA, the better view is that a Court should not decide that the provision of advice by a trade union as to its members’ legal rights in these circumstances should amount to an inducement. From the union’s perspective, of course, it would be sensible to make it absolutely clear in any communication that the union is not asking or encouraging the member to do or to refrain from doing anything at all. It is merely providing information as to their individual rights under Sections 44 and 100. That is something that any trade union must be permitted to do, in order to protect its members’ health and safety.  

The Future

Meanwhile, at a time when the government is considering a raft of emergency legislation for those affected by the Coronavirus pandemic, it must rectify the omission to include limb (b) workers and agency workers from the reach of the protections under Sections 44 and 100. At the same time, clear guidance should be issued to the workforce as to the circumstances in which they are permitted to refrain from attending work, or otherwise performing the full range of duties.

This article was originally published on the UK Labour Law blog