UK-COVID-19: Back to the office and employees with health and safety concerns – can an employer dismiss an employee who refuses to return?
September 16, 2021
Authored by: Adam Lambert and Leah Aschettino
After 18 months of almost entirely remote working, we have seen much of the City now implementing ‘Back to the Office’ policies and on Monday 6 September central London saw its busiest day on public transport since the pandemic began.
Employers’ ‘Back to the Office’ policies vary. Many of these arrangements are now mandatory and staff are required to return to the office either on a full-time or part-time (“hybrid”) basis.
However, employers may find themselves in a situation where one or more employees refuse to come back to the office on a full or part-time basis on the grounds of health and safety concerns. In this article, we consider the legal merits of such a situation, as well as examining recent case law.
Can an employer dismiss an employee who refuses to come back to the office based on health and safety concerns?
Section 100(1)(e) Employment Rights Act 1996 (“ERA”) provides that an employee can be automatically unfairly dismissed if that employee takes “appropriate steps” to protect himself/herself in circumstances of danger which he/she reasonably believes to be “serious and imminent” and is dismissed as a result.
Pre-pandemic, claims under s100(1)(e) ERA were relatively rare but we anticipate an