The first coronavirus walkout is coming. And for once the law is on the side of workers

Employees have the right to leave if fears over health and safety aren’t dealt with, writes James Moore

Factory workers have been encourage to go back to work, but are they safe to do so? (PA)

Section 44 of the 1996 Employment Rights Act is a small piece of employment law that could soon become very big news.

It hands an employee the right to walk out of their workplace in circumstances in which they reasonably believe themselves to be in “serious and imminent danger” if they have first raised a relevant health and safety concern.

You don’t need to be a specialist in employment law to see how, at a time when Covid-19 is still busily killing people, that has suddenly become very relevant now the government has issued what amounts to a “return to work” order.

The failure to implement effective social distancing pretty much qualifies as a relevant health and safety concern.

Having flagged that, if the fear of harm causes an employee to walk out, the law holds that they should not be subjected to any detriment from their employer. So disciplinary action, loss of pay, and (particularly relevant) dismissal are all big no-nos.

In most cases, a member of staff has to have worked for their employer for two years to bring a case for damages if they’re unfairly given the boot.

But that brings us to another small piece of employment law that could become very big news. Section 100 of the same act makes an exception in these circumstances.

Dan Hobbs, an employment barrister at 5 Essex Court, thinks the current situation is likely to “bring employers and employees into conflict” and no wonder.

He, his fellow employment lawyers and the tribunals they represent people in front of, could be poised to get very busy very quickly.

The return to work, for those unable to work from home, was always going to be fraught with difficulty. The government closing its eyes and jumping, in its usual amateurish way, has greatly exacerbated the issue.

It has lit the blue touch paper and then scarpered, crying “it wasn’t us, it wasn’t us” as loudly as possible.

Up until now, one the few things it has been good at is messaging. “Protect the NHS. Stay Home. Save Lives,” wasn’t exactly catchy, as slogans go. But appearing with red cross hatching (danger!), it did the trick after Boris Johnson’s government belatedly woke up to the threat posed by the novel coronavirus.

“Stay alert. Control the Virus. Save Lives,” decked out in Norwich City colours, however, serves as a metaphor for the government’s confusion when it comes to the next phase.

The foreign secretary, Dominic Raab, went and stirred the pot still further by repeatedly stating that those who could not work from home, should actually only start to return to work from Wednesday. This when tens of thousands of them had already turned up in response to what his boss said over the weekend.

Employers and unions have been united in their calls for guidance because it would at least establish the rules of the game in terms of how to move forward.

Hobbs told me it could be of real benefit in reducing the conflicts he voiced concern about.

While its complicated by the fact that one size definitely does not fit all, good employers will do their best to comply, adapting their operations to facilitate social distancing, staggering shifts to reduce numbers on site, providing ample reserves of soap and/or hand sanitiser in response.

This will put the focus where it belongs: on the bad ones, whose staff, if the feel they need to act, can look to sections 44 and 100 of the Act.

As things stand, even the good ones could find themselves running into problems. Leaving it to “common sense” just doesn’t cut it.

They’re basically being asked to make it up as they go along by a bad government that’s too often done the same thing and made a godawful mess of it in the process.