Can a UK employer legally require someone to stay home if they pose a significant risk of harm to others?

Question

I'm thinking of this in the context of the current debate about coronavirus vaccine certificates, but I think the question is wider and I don't want to limit it to just that.

Suppose an existing long term employee develops some trait or condition, that means they now pose a risk to others.

It could be a neurological injury issue - they uncontrollably say offensive things (racist comments, threats, obscenities), they become unable to reasonably assess dangerous or risky conduct as they do their daily work (risk of injury through carelessness/impulsivity/damage to perceptual senses). It could be a mental health issue that lacks control or where they refuse meds due to religious beliefs or clinical vulnerability (real or self imagined). It could be that they present a medical risk via contagion, that in the circumstances no tests available to the employer can adequately mitigate.

Perhaps it can be mitigated by some action of the employee, but such action would be of a kind an employer can't reasonably demand, such as relevant medical intervention, therapy, or some kind of change to lifestyle/domestic circumstances (therapeutic exercise, physical aids). Or perhaps it can't be greatly mitigated at all.

Assuming one could not reach a finding that either employer or employee were acting blatantly unreasonably.....

1. What is the position in UK employment law, of an employer who finds that despite best efforts they can neither mitigate the risk to a comfortable/safe level, nor find an alternative role or accommodation that is workable for the employee? (Note that I'm not assuming a big employer, the question would be as pertinent for a 10 person business as a 10,000 employee one)

2. Can they be removed from work on safety grounds, if no prior contractual condition covers the situation?

3. Is the situation any different if there are mitigations available (say medications to take an extreme!), but the employee for personal reasons states they simply don't want to do them and the employer can't force them to do so?

Answer 1

English law answer:

The relevant legislation here includes disabilities protections under the Equality Act, and workplace health and safety regulations. It would be possible for something health related to fall under the Human Rights Act but this woulf depend on the circumstances.

It really depends on the circumstances, since this is a case of when you may terminate an employee with a health condition and to what extent it amounts to discrimination on the basis of disability.

Under English law employmers must make "reasonable adjustments" to allow individuals with disabilities to carry out their work. Such as purchasing accessible equipment / software for their work, or adjust their working conditions.

However, if no amount of reasonable adjustments will allow the employee to perform their duties to the standard required in their employment contract then it would not be discriminatory to terminate their employment.

Now the above works in the question's hypothetical about a worker developing some sort of chronic mental or physical conditions.

Other parts of the question mentions the safety of other workers. English law requires employers to create a safe work environment for their employees. Now what defines a safe work environment depends on the industry but at a bare minimum they certainly should be exposed to an unmitigated health risk posed by other employees.

As such it is entirely reasonable for an employer to forbid entry to the workplace for any worker who may pose a significant health risk to other employees.

Again. Whether something is deemed a significant health risk is entirely based on the facts in question.

As to part 3 to your question, again the employer is only obligated to make adjustments on its own end. It may choose to allow an employee on premises only when they have taken their treatment. Of course this would only be if it was necessary to prevent harm to the employee or others in the workplace. Whether you can terminate an employee for refusing to do so again goes back to the question of whether they can perform their duties despite not taking their treatment. If they can, then the employer can't fire the individual. If they can't, then it would be reasonable but again it would be up to the employment tribunal in question to decide on the facts

Answer 2

Yes they can. They are within their rights to require people not to pose a significant risk of harm to others. In fact they have a positive duty to uphold the right to health and safety of all employees, including that person themselves.

Answer 3

An employee must follow the lawful and reasonable instructions of the employer

If they are unable or unwilling to do so, that is misconduct and, if not rectified, is grounds for lawful dismissal.

Similarly, if they are unable to fulfil the functions of their employment, even after reasonable accommodation, then they can be lawfully terminated. For example, if a person suffers an accident or illness that leaves them intellectually disabled so that they can no longer be, for example, an airline pilot, then an employer who employed them as an airline pilot can dismiss them.

This is the general rule in most common law jurisdictions, except the united-states. Political changes in that jurisdiction over the last 50 years now mean it's lawful to dismiss an employee for any or no reason in 48 of the 50 states.

What is lawful and reasonable?

Well, that turns on the facts of the case.

Let's take a topical one: vaccines.

In australia, we have begun rolling out the Covid-19 vaccine targeting residents and workers in aged-care facilities first. An owner of such a facility might instruct their staff that the must have the vaccine.

• Is this lawful? Yes. Taking the vaccine is a lawful thing to do so asking someone to take it is also lawful.
• Is it reasonable? Probably. Providing the employer had conducted a risk assessment and considered the vaccine and other mitigation measures and decided that the vaccine was necessary to discharge their legal and ethical obligations to the other residents and staff, then it could certainly be argued that the instruction is reasonable.

In fact, in most jurisdictions, the vaccine is legally mandatory for aged-care workers - that would make it reasonable. However, it is not mandatory for home-care workers so that issue is still open.

However, it is probably not a reasonable request to make of a barista or barrister as the risk profile is different