Arguing the 'serious and imminent danger' of Zika

Lavinia Randall considers whether an employer can require their staff to travel to an area affected by the Zika virus

The Olympic Games are underway in Rio but some athletes, including golfer Rory McIlroy, have stayed away due to the risks posed by the Zika virus. While athletes are generally free to choose whether to travel to particular competitions, if you are an employee can you be required to go on a work trip that puts you at risk?

A preliminary point to consider is the length of time for which your employer is asking you to work overseas. A contract of employment is required to state the employee's usual place of work, and, depending on the nature of the role, will often state that the employee agrees to travel within the UK and abroad in the performance of their duties. If an employee is to be posted overseas for more than one month this must be stated in their contract of employment.

Whether they are at their usual place of work or travelling in the performance of their duties, an employee has a statutory right not to be subjected to any detriment by his employer on the grounds that, in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, they left or refused to return to their place of work or took appropriate steps to protect himself or other persons from the danger (section 44(1) Employment Rights Act 1996).

There is limited case law in this area but this right has been invoked by employees who refused to attend work because the roads leading to their place of employment had been closed by the police due to snowfall. It could also apply, for example, in the event of a terrorist attack, a gas leak, or an outbreak of a contagious disease.

A potential stumbling block for employees who are concerned about travelling to areas affected by Zika is whether they reasonably believe the virus presents a 'serious and imminent danger'. The World Health Organisation advises that 'Zika virus is usually mild and requires no specific treatment', with symptoms typically including a fever, muscle and joint pain, and headache, which by itself might not be considered a 'serious and imminent danger'.

However, for many employees the bigger concern with Zika is that it can cause microcephaly in unborn children. For an employee who is already pregnant it seems likely that Zika poses a serious and imminent danger.

For employees who are not pregnant, whether male or female, the question is rather less clear because there is evidence that Zika can linger in the body for several months and can be sexually transmitted. Employees who plan to conceive in the near future will understandably be concerned but might struggle to argue that the danger is serious and imminent.

A further question is whether the employee can 'reasonably be expected to avert' the danger, which in the case of Zika could include taking standard protections against mosquito bites, such as covering the body and using insect repellent, and also taking steps to avoid sexual transmission of the virus. An employer might well argue that it is reasonable to expect employees who are not currently pregnant to take such steps.

With limited case law on employees' rights to leave their place of work or take other steps to protect themselves from danger, employers and employees will have to look for ways around the threat posed by Zika, considering the nature of the employee's role and the practicality of working from other locations.

Lavinia Randall is a trainee solicitor at Bircham Dyson Bell @BDB_Law