Thu, 21 May 2020
In my previous two posts I referred to the protection against dismissal by sections 100(c),(d) and (e) of the ERA where employees refuse to work in circumstances of danger which they reasonably believe to be 'serious' and 'imminent' and the difficulties employer's may face if they require employees to return to work at the present time. Equivalent provisions apply where an employee suffers a 'detriment', for example where an employer refuses to pay an employee who refuses to return to work in such circumstances (Section 44 of the ERA). However, subject to the exceptions I identified in my second post, employees will normally have to return to work to 'reasonably' assess the risk. For example, whether the proposed system is effectively enforced or supervised. One of the many potentially difficulties is where it is not possible to socially distance in a particular workplace. It is arguable that employees may have a right to refuse to return unless other protective steps are taken to address the risk.