The Government has now published its guidance on the steps employers should take to enable employees to return to work safely. A key recommendation is that all employers should undertake a risk assessment before employees return to work. A failure to do so and a failure to devise and implement a safe system, may well entitle employees to argue that it is not safe to return to work and dismissal in those circumstances may well be automatically unfair under Section 100(1)(c) or (d) of the ERA. Where such an assessment takes place it may still be reasonable for employees to rely on Section 100(1)(e) where they reasonably believe that there is a serious and imminent risk of danger if the system is inadequate or is not effectively enforced. instances of flagrant non-compliance may even justify complaints of constructive dismissal.
