I do not think my workplace is safe, what rights do I have if I refuse to work on health & safety grounds?

Last updated: 05 Mar 2021

Workers should never be required to work in unsafe conditions and safeguarding any workplace in these times is indeed challenging.

Prospect believes that workers should not be required to attend workplaces without proper precautions and urges employers, and government, to work with unions to ensure risks are minimised through full risk assessments, social distancing, hygiene, and PPE provision. See our health and safety advice for more information.

The Employment Rights Act says that it will be unlawful to subject an employee to a detriment, or to dismiss them, for refusing to work in circumstances where they reasonably believe they are facing a serious and imminent danger or where they take appropriate steps to protect themselves or others.

Section 44 of the Act states that a worker has the right not to be subjected to any detriment where they leave work, or refuse to return to work, in circumstances where the worker reasonably believes there to be ‘serious and imminent’ danger, which they could not reasonably avoid. The law is amended from 31 May 2021, so that all workers, and not just employees as previously, have the right to bring a claim under this section. This will mean that many freelancers, zero hours contract workers and others on atypical contracts will have this legal protection.

The protection also applies where the worker takes appropriate steps to protect themselves or others from serious and imminent danger. Whether the steps are appropriate will depend on all the circumstances, including particularly the employee’s knowledge and the facilities and advice that were available to them.

Under section 100 of the Act any dismissal in these circumstances will be automatically unfair. This right only applies to employees. The usual two-year qualifying condition does not apply to unfair dismissal claims, so any employee can claim regardless of how long they have been employed.

The law offers this protection to those who refuse to work because they believe there is ‘serious and imminent’ danger, and Prospect will use the law robustly to defend our members.

But as a word of caution, it should be noted that a tribunal would need to consider all the circumstances in a case, such as:

  • whether the worker’s belief was reasonable
  • the extent of the danger
  • whether it could be avoided
  • the extent to which the employer was following official guidance.

Because of all these uncertainties there would be no guarantee of succeeding in a tribunal claim and members should always seek individual advice from the union and wherever possible adopt a collective approach to health and safety concerns.

In workplaces where Prospect is recognised, it would always be best to raise the issue as a collective one and for the union official to press the employer on the health and safety requirements.

This page is designed to give general information about members’ rights on returning to work. It does not cover all circumstances and should not be treated as a definitive answer. Members should contact Prospect either through the Member Contact Centre on 0300 600 1878 or contact their union rep or full-time officer for specific advice.