In two recent decisions, the employment tribunal has considered whether dismissals were automatically unfair due to the employee raising health and safety concerns relating to COVID-19.
Case 1: Gibson v Lothian Leisure (ET/4105009/2020)
The claimant worked as a chef and was furloughed in March 2020 when the restaurant at which he was employed closed temporarily. Prior to the planned reopening of the restaurant, the claimant was asked to return to work. He was concerned about the possibility of contracting COVID-19 and passing it on to his clinically-vulnerable father. He alleged that his employer did not provide PPE for staff and indicated that it had no intention to create a ‘COVID-secure’ working environment. When he raised concerns with his employer, he was told to “shut up and get on with it”. His employment was subsequently terminated with immediate effect by a text message from one of the respondent’s directors, which suggested that his dismissal was due to redundancy. He was not paid any notice pay or holiday pay and had not accrued two years of service, meaning that he had no entitlement to receive redundancy pay and could not claim ordinary unfair dismissal.
The employment tribunal upheld the claimant’s claim for automatically unfair dismissal due to the steps he had taken (or proposed to take) in response to a serious and imminent danger to his father’s health and safety. In the alternative, he had been unfairly selected for redundancy on the same basis. The tribunal accepted that the claimant had a reasonable belief in the serious and imminent risk of harm to his father, leading him to raise concerns about the lack of PPE. Prior to raising these concerns, he was a successful and valued member of staff and had recently been promoted.
The claimant was awarded a basic award, compensation of £14,500 as well as notice pay, holiday pay and unlawful deductions (including for an underpayment of furlough pay).
Case 2: Accattatis v Fortuna Group (London) Ltd (ET3307587/2020)
The claimant in this case worked for a business that sells and distributes PPE. In March 2020 he requested to work from home or to be placed on furlough by his employer, on the grounds that he felt uncomfortable using public transport and working in the office. His employer refused, on the basis that it was not possible for the claimant to carry out his role at home and the business was too busy for him to be placed on furlough. He was told instead that he could take holiday or unpaid leave.
After he contracted COVID-19 and took a period of sick leave, the claimant made several further requests to be permitted to work from home or to be furloughed, which were rejected by the respondent. The claimant was subsequently dismissed and paid in lieu of notice shortly prior to accruing two years’ continuity of service. He was therefore not entitled to bring a claim for ordinary unfair dismissal, but brought a claim for automatically unfair dismissal on the grounds that his dismissal was the result of taking steps to protect himself from serious and imminent danger.
The employment tribunal accepted that the claimant had a reasonable belief in the risk of serious and imminent danger due to COVID-19. However, it did not accept that he had taken appropriate steps to protect himself from danger or to communicate the risk to his employer. The company had reasonably concluded that the claimant could not work from home and did not qualify for furlough. It had agreed that he could stay at home, but the claimant’s demand that he continue to be paid for working from home or be furloughed were not, in the tribunal’s view, appropriate steps to protect himself from danger. The tribunal held that the claimant’s dismissal was due to him being regarded as “challenging” by his employer and in order to ensure that he did not accrue two years of service.
What do these decisions tell us?
Neither of these decisions, as first instance decisions of an employment tribunal, will be binding but they serve to illustrate the approach that will be taken by the tribunals to the issue of health and safety dismissals relating to the COVID-19 pandemic. In the first case, the tribunal was no doubt influenced by allegations that the employer was not prepared to take steps to create a COVID-secure working environment and the claimant’s dismissal was abrupt and without any prior consultation. In the second case, evidence suggested that the claimant was a “challenging employee” with a history of complaints about the workplace. The employer had made attempts to resolve the situation with the claimant and had taken various measures in an attempt to improve safety and hygiene in the early stages of the pandemic.
The tribunal in the second case recognised that the pandemic “presented a unique, challenging and fast-moving situation for both employers and employees to deal with”. These decisions illustrate that for an employee to succeed in a claim for automatic unfair dismissal on health and safety grounds, they must have both a reasonable belief in the risk of serious and imminent danger to health, and the steps that they take in response must be appropriate. In order to defend a potential claim, employers must be able to demonstrate what steps have been taken to minimise the risk of exposure in the workplace and address any specific concerns raised by their employees.