As expected, we are now starting to see a number of decisions being handed down from the Employment Tribunal in relation to Covid-19 dismissals. More specifically, from employees who have sought to bring claims of automatic unfair dismissal where they have been dismissed for:

1. telling their employers about harmful circumstances related to health and safety;
2. leaving work or refusing to go to work where the employee believed there was a serious and imminent danger; and
3. taking appropriate steps to protect themselves or others from serious imminent danger.

The attraction of bringing automatic unfair dismissal claims is that the employee does not have to have two years’ service, in fact the protection in respect of such claims require no service at all, in addition the compensation awarded is uncapped.

Below is a brief overview of the cases to date and what they tell us about the tribunal’s approach to these issues generally.

Preen v Coolink and Mullins

Mr Preen, the Claimant, was an air conditioning and refrigeration engineer who raised concerns to his manager about going to work during the first national lockdown. His role could not be done from home but he wanted to follow the government’s advice and stay at home and would only work if it was an emergency. The Claimant also confirmed that non-essential work was “putting yourself and others at unnecessary risk”. The Claimant’s manager responded to confirm Mr Preen’s dismissal for refusing to work.

Mr Preen was successful in his claim for automatic unfair dismissal. The tribunal held that the Claimant had clearly communicated his concerns about continuing to work during the lockdown and that he reasonably believed that continuing to do non-essential work would put himself and others at risk. The Claimant reasonably believed that raising this to his manager was the reason he was dismissed.

Gibson v Lothian Leisure.

Mr Gibson, a chef, was furloughed when the first national lockdown began. During his furlough and in the run-up to the end of the lockdown, his employer asked him to come into work. Mr Gibson was worried about catching COVID-19 and passing it to his clinically vulnerable father. He also raised concerns about the lack of PPE and a non-secure COVID-19 working environment. His employer summarily dismissed him via text message and he brought various claims, among them one for automatic unfair dismissal.

The Claimant’s claim succeeded. The tribunal found that the circumstance of danger was the growing prevalence of infections by COVID-19 and the potential significant harm that could be caused to his father should he contract the virus. The Claimant reasonably believed this to be “serious and imminent”, hence raising concerns about the lack of PPE.

Rodgers v Leeds Laser Cutting

In contrast to the Gibson case above, an employee told his manger that he wouldn’t return to work until after lockdown because he feared he would infect his clinically vulnerable children with COVID-19. However, the tribunal found that the dismissal of Mr Rodgers not automatically unfair. Unlike, the Gibson case, Mr Rodgers was found not to have a reasonable belief in serious and imminent workplace danger. The tribunal was influenced by the Claimant’s actions, including breaching self-isolation guidance the day after leaving work. Further, the employer had implemented the precautions recommended by government advice at the relevant time and the Claimant had not raised any concerns about these precautions.

Accattatis v Fortuna Group (London).

The Claimant worked for a company which sells and distributes PPE. Employees of the company were classed as key workers and the business remained open during the first lockdown. In March and April 2020, the Claimant’s requests to work from home and be placed on furlough, due to anxiety about using public transport and working in the office, were denied due to it not being possible for him to work from home. The Claimant was told he could take paid annual leave or unpaid leave if he wished to stay at home. The Claimant declined and after further requests to be furloughed, he was dismissed.

The tribunal dismissed the Claimant’s claim and noted that the evolving nature of the pandemic and the lack of knowledge about the virus in the early stages made it difficult to assess, but in this instance it was prepared to accept that the Claimant did have a reasonable belief in serious and imminent danger. However, he had not taken appropriate steps to protect himself from the danger. His demands to be furloughed (which he did not qualify for) or working from home (which weren’t feasible) did not qualify as appropriate steps.

Comment

All of these judgments are first instance decisions and so not binding on other tribunals. They also arise out of issues arising at the beginning of the pandemic and therefore future cases will likely need to grapple with the different factual circumstances about what we know about the virus and the guidance in place at the relevant time. The tribunals have made it clear that COVID-19 doesn’t automatically create circumstances of serious and imminent danger and more is required, such as unsafe working practices or medical vulnerability arguments.

Each case will turn heavily on its facts but it is clear from these judgments that the following are highly relevant factors:

1. The conduct of the employee. Does the employee have valid and genuinely held concerns? Have they properly communicated their concerns to their employer and whether the steps they took in response were reasonable? Have the employees concerns arisen from the workplace itself or the broader environment? Are the employees concerns linked to a high chance of vulnerability to COVID-19?;
2. The conduct of the employer. Have safety measures been taken and where those communicated to employees? Did the employer consider the employees concerns and the manner of any dismissal?;

The government has now removed their work from home guidance in response to the development impact of COVID-19. Employees in certain categories of vulnerability, or with concerns for dependants may still have concerns about returning to the workplace, or travelling to work.

All employers should have health and safety precautions in place and up to date risk assessments to respond to the threat of coronavirus. However, this will not automatically absolve the employer of liability if they dismiss an employee for refusing to work based on health and safety grounds. Employers need to make sure they are taking adequate steps to address any employee concerns before taking action. Depending on the circumstances, getting this wrong could lead to unfair dismissal and/or discrimination claims.

What should employers do?

1. Ensure health and safety procedures and risk assessments are regularly reviewed and update to date, especially in line with any coronavirus-related developments;
2. Continue to communicate with employees on the steps being taken to protect them;
3. If an employee still refuses to attend work, speak with them to find out the reasons why and consider any response to their concerns taking into account their individual circumstances.