An English employment tribunal recently considered that the circulation of the COVID-19 virus in society is not a good enough reason for an employee to be absent from work (Rodgers v Leeds Laser Cutting Limited ET1803829/2020). Despite acknowledging that the virus poses a serious and imminent threat to public health, the tribunal held that an employee must show that they reasonably believe that such danger is specifically present within the workplace. The judgment is not authoritative in Mauritius. It is nevertheless of interest and indicative of an approach that the courts may take, especially as employers consider whether to require their employees to return to the physical workplace after the end of the second lockdown.
In the English case, the employee was a laser operator at a laser cutting company. The workplace was a large warehouse-type space of around 12,000 to 14,000 square feet with only about 5 people working on the ‘shop floor’ at the material time. The employer required its employees to continue to attend work during the first national lockdown (as it was presumably permitted to) and had already put in place the usual protective measures such as social distancing, wiping down surfaces, as well as staggering start/finish/lunch/break times. A mask dispenser was also available at the door of the premises. About a week after the announcement of the first national lockdown in the UK, the employee sent the following text message to his manager:
“unfortunately I have no alternative but to stay off work until the lockdown has eased. i have a child of high risk as he has siclecell (sic) & would be extremely poorly if he got the virus & also a 7 month old baby that we don’t know if he has any underlying health problems yet”
Almost a month later, the employee was sacked.
A comprehensive analysis of the judgment is not relevant as it is based on UK statutory provisions, which do not apply in Mauritius. For our local purposes, the interesting question that the tribunal had to determine was whether the employee reasonably believed that there were circumstances of serious and imminent danger at work, which justified his absence from the workplace. The tribunal considered that it was “entirely understandable” that the employee had significant concerns about the COVID-19 pandemic, and in particular, regarding his young baby and a child with sickle-cell anaemia living with him. However, the tribunal found that the employee’s concerns related to circumstances of serious and imminent danger all around, and not specifically within the workplace. The tribunal further considered that the employee could not have reasonably believed such danger to exist at the workplace, given the large size of the workplace and the small number of employees, the fact that it was not hard to socially distance, and the measures that were in place to reduce the risk of COVID-19 transmission. Further, the tribunal held that the employee could reasonably have been expected to avert any dangers, by abiding by the government guidance at the time, namely by socially distancing within the large, open workspace, by using additional personal protective equipment if he wished to do so, and by regularly washing / sanitising his hands. The tribunal went on to hold that if there were specific tasks which the employee felt he could not do while maintaining the social distancing practice, he could reasonably have refused to carry them out or raised them specifically with the employer.
How does this judgment assist employers in Mauritius?
First, it indicates that a court is likely to find that the mere circulation of the COVID-19 virus in society is not a “good and justifiable cause” for being absent from work – the employee’s apprehension of a health and safety risk (if any) must be based on the specific circumstances of their workplace. That said, however, the lack of a “good and justifiable cause” for an employee’s absence from work is not in itself a valid reason for terminating the employee’s employment under Mauritius law; there are prior notification procedures that apply and the employer must show that they could not in good faith take any other course of action (which requirements did not apply in the judgment of the English tribunal).
Secondly, the adoption of the widely recommended preventive measures in the workplace (social distancing, wearing of masks, hand washing, wiping of surfaces, staggering of start/finish/break times, etc.) reduces the reasonable risk of a “serious and imminent danger” to employees at work – however, the effectiveness of those measures turns on the circumstances of each workplace, such as the number of personnel per m2 and the practical reality of enforcing social distancing. Further, the fact that there may be no “serious and imminent danger” does not automatically mean that an employer has complied with its obligations under the Occupational Safety and Health Act to provide, so far as is reasonably practicable, a working environment (including the access to it) that is safe and without risks to health.
Thirdly, the English judgment adopts a practical and realistic approach to health and safety risk assessment: just because part of a job may expose an employee to certain risks, it does not mean that the employee can refuse to altogether work. As held by the English tribunal, it would be reasonable for the employee to refuse to perform that part of their job that exposes them to certain higher risks or to raise it with the employer.
The practical query is whether employers should require their employees to attend the workplace when the COVID-19 virus is still in circulation in society, and if so, under what conditions. The considerations vary according to the circumstances of every case, including factors such as whether it is possible for the employees to work remotely, the reality of social distancing and the wearing of masks throughout the day at the workplace, the size of the workplace, the effect on the business, etc. It is possible that the level of vaccination within the workforce is another factor for employers to take into consideration, but there is so far no judicial pronouncement on the extent to which employers may rely on the vaccination levels to satisfy themselves of the safety of the workplace.