The war of rights – employers right to query employee absence vs the right to be generally fearful of Covid-19

The Maltese, as well as foreign courts, convey the message that, with regards to health and safety, employers are to provide a high standard of care towards their employees. This means that employers are to use their minds and implement reasonable H&S measures whilst retaining flexibility in adjusting to this ‘new hidden Covid-19 risk’. The majority of H&S practitioners would tend to agree that it is very likely that employees who refuse to attend work or take appropriate steps to protect themselves to mitigate the risk of contagion are protected from dismissal. However many continue to wonder how Maltese Courts would interpret the term ‘reasonable measures’ in the context of the recent pandemic.

The recent English case of Rodgers v Leeds Laser Cutting Ltd decided on the 1 March 2021 considers the extent of employees’ legitimate fears of exposure to contracting Covid-19 at work and whether this could be used as a ground to justify dismissal.

The facts are as follows: the defendant company is a very large warehouse and when the first lockdown was announced, the Company advised that it would remain open but would be implementing health and safety measures. An external professional was engaged to carry out a risk assessment which identified the level of risk of various scenarios, with recommendations to reduce risk, and the company ensured that all guidance issued by government authorities was strictly followed. Notwithstanding, the claimant advised his employer that he would not be attending the warehouse as he feared contracting Covid-19 which could affect his vulnerable children. He was later dismissed and he consequently sued the company on the basis of unfair dismissal.

In its decision, the UK Employment Tribunal placed considerable weight on the clear evidence that the company had implemented reasonable and satisfactory health and safety measures in line with Government guidance (including social distancing, continuous reminders to staff to wash hands and wipe down surfaces, and providing mask dispensers). Equally important was the fact that the Claimant was held vicariously liable as he himself breached self-isolation guidance during his period of refusal to work. The Tribunal noted that the Claimant also failed to raise any specific issues in relation to the level of danger in the workplace. Employment Judge Anderson in reaching her conclusions stated as follows “… I conclude the Claimant’s decision to stay off work was not directly linked to his working conditions I find that this is not a case where the claimant refused to return to his place of work or any dangerous part of his place of work due to the conditions in that environment; he refused to return to his place of work until the national lockdown was over. I cannot conclude that the decision to absent himself, regardless of what the situation might be at the workplace until a national change was made, can lie at the door of the Respondent.”

The steps taken by the Company in response to the pandemic were essential. It is once more made clear that a comprehensive risk assessment is an impact-proven measure that can mitigate or answer potential claims. The deciding factor will likely be the ‘link’ between the reasons for refusal to work, and the effectiveness of the COVID-19 measures implemented in the workplace at the relevant time.

Once again, the advice for employers is that the only way of ensuring that ‘all reasonable steps have been taken is to understand the law/government guidance and to seek our professional and practical advice to minimise risks at the workplace.