MANAGEMENT SYSTEMS - 14.02.2024

Can staff refuse to work for health and safety reasons?

If your workplace poses a risk to staff safety or mental health, can they refuse to work? What does the law state and how can you manage a tricky situation?

The legislation. The Employment Rights Act 1996 (ERA) stipulates that it is unlawful to subject an employee to any disadvantage or dismiss them for refusing to work when they reasonably believe they are facing a serious and immediate danger. Under s.100ERA , any dismissal in these circumstances will automatically be considered unfair. Any employee can make a claim regardless of their length of employment. Note. As of 31 May 2021, the law has been amended so that all workers have the right to bring a claim under this section. This means that freelancers, zero-hours contract workers, etc. are now granted legal protection.

So where does mental health sit? In the majority of cases, mental health will more likely result in sickness absence than it will cause “serious and imminent danger” in the workplace. However, each situation has different complexities such as the reasonableness of the worker’s belief, the extent and avoidability of the problem, and the degree to which the employer complied with official guidance. Tip. Being proactive and implementing a robust mental health policy and fostering a transparent workplace will go a long way to avoid an employee claiming that their mental health is posing serious or immediate danger (see The next step ).

Tip. For many SMEs a new fiscal year is approaching. Take the opportunity to perform a self-audit on your management system to identify any gaps which may lead to a worker declining to work on the grounds of poor health and safety practices. Use our form Health and Safety Arrangements - Audit to assist (see The next step ). With budgets about to be set, now is the time to set aside funds for addressing any shortfalls and strengthening your safe and healthy work environment.

For our Stress and Mental Wellbeing Policy and our Health and Safety Arrangements - Audit form, visit https://www.tips-and-advice.co.uk , Download Zone, year 22 issue 11.

Any employee is entitled to protection if they feel the workplace poses a serious and imminent threat. However, mental health issues are unlikely to fall into this category. Undertake an audit to identify gaps in your management systems and use upcoming budgeting to set aside funds to improve the safety and wellbeing of your workforce.