The Government is consulting employers and trade unions about ‘guidance’ regarding a safe return to work as the ‘lock down’ restrictions are eased. The trade unions have raised concerns about the lack of effective enforcement mechanism. It is of course trite law that all employers owe their employees a duty of care but that duty is not always easy to enforce in a timely manner. Perhaps a more effective remedy is simply to refuse to work where for example social distancing rules are not observed. If an employer were to dismiss an employee in such circumstances, the dismissal may well be found to be in breach of Section 100(1)(e) of the ERA where the threat of danger was reasonably perceived to be ‘serious’ and ‘imminent’. The EAT’S ruling in Oudahar [2011] IRLR 730 is quite supportive of employee rights in such circumstances and remember there is no qualifying period.
