Employment Solicitor Chris Dobbs looks at some recent cases surrounding unfair dismissal and covid related health & safety concerns, providing advice for employers when implementing workplace safety measures.
Conflicting Outcomes for Health & Safety Detriment Dismissals
As part of our series of articles during the coronavirus pandemic, we highlighted the role of Section 100 of the Employment Rights Act 1996 in protecting employees who raised concerns about health and safety.
Employees who are dismissed for taking steps to avoid a ‘serious and imminent risk’ of danger qualify to raise a claim for automatic unfair dismissal. They do not require the usual 2 years of continuous service.
We have been waiting for Tribunal decisions on the extent to which this would apply to employees who raised concerns about coronavirus and workplace safety.
Can employees refuse to return to work due to covid concerns?
Gibson v Lothian Leisure
In Gibson v Lothian Leisure, the Claimant in this was a chef in a restaurant who expressed his concerns about a return to work after furlough. His father was considered medically vulnerable and the claimant was concerned in particular about the risk of passing on covid.
As part of his claim, he alleged that the employer told him to ‘shut up and get on with it’.
He was subsequently dismissed by text and brought a claim for automatic unfair dismissal, citing s100 and the associated health and safety detriment. The claim was successful as Mr Gibson was held to have a reasonable belief in the serious and imminent risk to his father.
The award in this case was over £21,000.
Rodgers v Leeds Laser Cutting
In Rogers v Leeds Laser Cutting, the Claimant was one of five employees in a large warehouse. He contacted his manager after a colleague showed symptoms of covid to say that he would be staying home “until the lockdown has eased” as he was concerned about passing on covid to vulnerable children. The Claimant was then dismissed a month later.
The Tribunal rejected the s100 claim as it was presented evidence that the Claimant had broken guidance himself away from work, did not raise any identifiable concerns in his correspondence with the employer (i.e. he did not specifically refer to a lack of PPE or social distancing, for example), did not seek to raise concerns internally first, and the employer could demonstrate steps it had taken to mitigate the risks.
Accattatis v Fortuna Group
In this case, the company was a distributor of PPE and the Claimant was concerned about health and safety risks both while travelling to and from work (on public transport) and also in the office itself. He asked to be furloughed but the company was of a view that his job could not be done from home and also noted that the nature of the business meant they were particularly busy.
The Claimant was offered, and rejected, the opportunity to take unpaid leave or holiday instead of being furloughed. On the third occasion following this discussion, he was dismissed.
What is serious and imminent danger in the workplace?
The tribunal accepted that Claimant believed he was in serious and imminent danger in light of government guidance at the time. However, it did not accept that his actions were or would have been appropriate.
This case also highlights the fact that the decision to furlough an individual rests with the employer. There was no claim associated with a ‘right’ to be furloughed.
Related Article: Is long covid a disability?
A specialist Employment Solicitor’s view
Chris Dobbs concludes: “All the above are only first instance tribunal decisions so we are awaiting a binding decision from at least the Employment Appeal Tribunal on how s100 will apply to covid cases. However, the take-away point is that employers should still be careful about implementing workplace safety measures.
This is despite comments in the Rodgers case that Covid-19 could not be treated as automatically creating circumstances of serious and imminent danger. This comment was justified as having the potential to give rise to a disproportionate number of claims.
Still, there is no qualifying period for these claims and growing awareness means that such claims may also arise in situations other than just in relation to covid in the future.
It is important for employers to be aware of the circumstances and to treat each individual raising health and safety concerns carefully, taking into account their personal circumstances and perspective.”
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