Section 44: could it stop your staff returning to work?

Kate Palmer - HR Advice and Consultancy Director

August 03 2021

Over the pandemic, library workers and postal staff refused to work due to safety concerns.

And they were entitled to do that – thanks to a piece of law called ‘section 44’. Now cases of COVID-19 remain high, there are rising numbers of employees using this clause to stay home.

So whether you’re asking remote staff to return or taking employees off furlough, you could face legal pushback. To see what section 44 means for your back-to-work plans, read on…   

What is section 44?

Section 44 falls under the Employment Rights Act and it covers all employees. It says:

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

So in plain English, employees can refuse to work if they believe their workplace puts them in unavoidable danger. And since employees are protected by this law, employers can’t use disciplinary measures or treat staff differently for refusing to work.

Why talk about section 44 now?

Before now, section 44 wasn’t exactly a huge talking point. Because unless your workplace has dangerous equipment or processes, there was little reason for staff to mention it.

But due to COVID-19, it’s now a rising topic among employees. That’s because over 40 percent of UK employees started to work from home to avoid the virus – and now restrictions have lifted, many could feel that it’s still too risky to return.

And since cases of COVID-19 are still high, staff could refer to section 44 if:

  • You haven’t taken steps to protect them from COVID-19.
  • They have a condition that makes them vulnerable to COVID-19.

But don’t worry. There are things you can do to prevent legal pushback …

Carry out a risk assessment

As an employer, you need to prove you’re doing all you can to protect your workforce. And to do that, you need to carry out a workplace risk assessment – which includes COVID-19 risks.

So if you haven’t carried out a risk assessment recently, you can’t show that you’ve made sure your workplace is safe. And when employees feel unsafe at work, they could claim for constructive dismissal.

When you carry out your risk assessment, think about ways COVID-19 could spread around your workplace. This could include:

  • Face-to-face contact
  • Being in a crowded space
  • Handling shared objects

Even though many COVID restrictions have now lifted, it’s still your duty to reduce any risks. So whether it’s face coverings or social distancing, keep up with these measures if they protect your staff from the virus.

Once you’ve completed your risk assessment, share it with your staff. This helps reassure your workforce you’re doing all you can to keep them safe.

Ask staff how you can make them feel safer

Ask your employee if they have any specific concerns about returning to work.

This helps you take effective steps to tackle their reluctance to return. For example, if an employee has concerns about using crowded public transport, you could adjust their shift times to avoid peak travel times.

Depending on what your employee says, you’ll know exactly how to ease their back-to-work concerns.

Consider flexible working

Employees are entitled to make a flexible working request once a year. Under flexible working, staff can ask to work from home on a full or part-time basis.

And while you can refuse this request, you need to have a solid business reason for why. So if there’s no real reason why your employee can’t work from home, you should allow them to continue. 

A hybrid workplace (where staff work some of their time at home) can make your premises safer and boost confidence among hesitant staff.

Because with less staff in your workplace at once, it’s easier to spread out and avoid crowding. Plus, anxious staff can choose to come in on days when it’s less busy.

Wait until staff are fully vaccinated

If staff aren’t fully vaccinated yet, they might argue that retuning to work is too risky.

So if you have younger staff, you could allow them to work from home until they receive both doses.

Or, if you’re still using the furlough scheme, you could keep employees on the scheme until they’re fully vaccinated. By the time the furlough closes in September, everybody should have had chance to receive both doses.

Think about your vulnerable staff

If your employee had to shield during the pandemic, it’s understandable they feel anxious about returning to work.

And while all staff can now return to work, the government says you “still have a legal responsibility” to protect them from risks. So if a staff member has a pre-existing condition, you should do more to protect them.

This could mean:

  • Keeping them on the furlough scheme
  • Allowing them to work from home
  • Making sure they work quieter shifts
  • Asking them how you can make them feel safer at work

Get unlimited HR and health & safety support

When you’re a Peninsula client, you have access to round-the-clock HR and health & safety advice. So whether you’re facing legal pushback or fears over safety, there’s always a consultant at the end of the phone.

To discover an affordable package for your business, get your quote today. 

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