Can Staff Refuse To Attend Training Even If The Organisation Has All Covid Safeguards in Place?
I received the following email today that asked me the above question and having checked this out fully before answering it I (with the permission of the person who sent it to me) thought I’d share it with you in the hope that it may help some of you out there.
“Morning Mark
I have a query our staff refreshers are commencing weekly from the 19th Feb up to April.
I have the risk assessments in place and staff keen to get started and be refreshed. There’s always however about 3 members of staff who are declining to participate on the training.
We are tested weekly, staff wear ppe on the homes and required to do the same on training also received Vaccine. They are prepared to observe however I’m not satisfied with that option and need to see after a lengthy time not training whether they have remembered the techniques etc
These few staff are stating because they will be close to one another and when questioned if there was an incident on the home what would be different re close contact their response they would get involved because they had too, these few staff are trying to be awkward. Have you any advice for me.”
My Response was as Follows …….
“Hi Xxxxxx
You raise an interesting question because the answer is as normal although the circumstances are now nfar form normal. Let me explain.
In short the answer is as normal on the basis that if the risk assessment shows that the need to undertake PI refresher training is greater than the risk of staff catching the virus then the training should go ahead and that could be considered a ‘reasonable management instruction’. Therefore any refusal by staff may be seen as a breach of their contract of employment.
As far as I am aware the only legitimate grounds an employee would have for refusing refresher training would be under regulation 8 of the Management of Health & Safety at Work Regulations with protection provided for that refusal under Section 44 of the Employment Rights Act on the grounds of being exposed to ‘Serious and Imminent Danger’.
So, what may constitute ‘Serious and Imminent Danger’?
Considering the current and every-changing situation with regard to this virus and it’s transmission, employees could be placed in a position of ‘serious and imminent danger’ if an employer had failed to put in place appropriate arrangements within the workplace to prevent the transmission of the virus.
However, where an employer has put the necessary safeguards in place and reduced the risk to it’s lowest possible level, the employer may reasonably direct an employee to attend any work based activity, including refresher training.
On that basis if an employee failed to comply with a reasonable management instruction that could constitute a potential breach of contract by an employee, which could result in an employer taking disciplinary action against the member of staff.
As you have stated that the staff who are refusing to attend are currently working in the environment that they are expected to intervene in and that they have stated that they would be willing to physically intervene if they had to and that all of the necessary covid safeguards have been put in place as you describe, then I can’t see any reason why they can’t undertake refresher training, especially considering the potential risks involved in not refreshing their training and the potential harm that could occur and if they refuse to undertake training that should be treated as a normal disciplinary issue (based on whatever your organisations disciplinary procedures are).
However, because the situation with this virus is one that has never happened before, it would be for a court to decide whether or not the staff had the right to refuse training based on all of the above. So on that basis if the staff still refused to undertake training and were disciplined they could decide to take their case/s to an industrial tribunal and then to court and see what the court rules.
I hope that helps.”
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