For over a year now employers have had to deal with a number of previously unheard of issues such as furlough leave, self-isolation and making workplaces "COVID secure". It has been a steep learning curve and, perhaps inevitably, these situations have not always been handled in the best way. We are now seeing cases reach the employment tribunal and, in this article, we examine some of those cases that have been heard recently.
Even though the end of restrictions is in sight, many staff will remain concerned about commuting and attending their workplace and employers will need to be sensitive to this. Although the cases below are only at tribunal level and so not legally binding, they provide useful guidance on some of the issues that employers may encounter in the coming months.
Gibson v Lothian Leisure
Mr Gibson, a chef, was furloughed when the first national lockdown began. During his furlough leave and in the run-up to the end of lockdown, his employer asked him to come into work. Mr Gibson was worried about catching COVID-19 and passing it on to his father who was clinically vulnerable. When he raised concerns about the lack of PPE and a non-secure COVID-19 working environment, his employer summarily dismissed him via text message, with no notice or accrued holiday pay. The message said that Lothian Leisure was changing the format of the business and would be running it with a smaller team after the lockdown. Mr Gibson brought various tribunal claims, among them one for automatic unfair dismissal.
Under section 100(1)(e) of the Employment Rights Act 1996 (ERA) employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger, are protected from dismissal. There is no need for the employee to have two years' service.
In this case, the tribunal was satisfied that Mr Gibson's actions met the requirements of section 100(1)(e) because he had taken steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger. Alternatively, since the wording of the employer's text message suggested a possible redundancy situation, Mr Gibson had been unfairly selected for redundancy under section 105(3) because he had taken those steps. The circumstance of danger were the growing prevalence of COVID-19 infections and the potential significant harm that could be done to his father should he contract the virus. Mr Gibson reasonably believed this to be 'serious and imminent', hence raising the issue of PPE.
The decision demonstrates that it is possible for a claim for unfair dismissal under section 100(1)(e) ERA to succeed in these types of situations. Here the claimant's concerns about his clinically vulnerable father led him to take steps to reassure himself that the workplace would be a safe environment so that he could protect his father from the possibility of picking up COVID-19.
Employers should note that this protection applies from day one of employment and there is no need for two years' service. However, each case will be assessed on its own facts as the following case illustrates.
Mr Rodgers messaged his manager on 29 March 2020 to state that he would be staying away from his workplace "until the lockdown has eased" because he was worried about infecting his vulnerable children, a baby and a child with sickle-cell anaemia, with COVID-19. A month later, he was dismissed.
Mr Rodgers did not have sufficient service to claim ordinary unfair dismissal. Instead, he alleged that he had been automatically unfairly dismissed for exercising his rights under sections 100(1)(d) and (e) of the ERA 1996.
Section 100(1)(d) protects employees who are dismissed because, in circumstances of danger, which the employee reasonably believed to be serious and imminent and which the employee could not reasonably have been expected to avert, the employee left or refused to return to their workplace.
Section 100(1)(e) protects employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger.
The tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known when the relevant acts took place. On the facts, such a belief could not be established, so sections 100(1)(d) and (e) were not engaged and the claim failed.
In particularly, despite Mr Rodgers' concern about COVID-19, he had breached self-isolation guidance to drive a friend to hospital on 30 March 2020 (the day after leaving work). Mr Rodgers' message to his boss did not mention concerns about workplace danger and he could not show there had been any such danger. In March 2020, government safety guidance advised hand washing and social distancing. The employer had implemented both precautions. Mr Rodgers had not taken any steps to avert danger or raised concerns with his manager before absenting himself from work and this was not appropriate.
The tribunal rejected Mr Rodgers' argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer's safety precautions. The tribunal found that, accepting this submission could lead to any employee being able to rely on sections 100(1)(d) and (e) to leave the workplace, simply by virtue of the pandemic.
This case serves as a reminder to employers that, while there were no circumstances of serious and imminent danger in this case, a failure to put in place adequate COVID-19 safety measures may expose them to the risk of claims in the future. However, the mere existence of the virus is not enough and employers who have implemented safety measures are unlikely to face successful claims of this kind.
Accattatis v Fortuna
Mr Accattatis told his employer he was not comfortable commuting into the office nor working from the office due to the risks of the COVID-19 pandemic, and asked his employer to place him on furlough or allow him to work from home. His employer, Fortuna Group (London) Ltd ("Fortuna") sold and distributes PPE. Fortuna rejected Mr Accattatis' proposals due to the fact that the employee could not do his job from home and furlough was not an option because the business was busy. As an alternative, the employer suggested the employee take paid or unpaid annual leave.
After Mr Accattatis made three further requests to be placed on furlough, each of which was rejected, Fortuna dismissed him.
As Mr Accattatis did not have sufficient service to claim ordinary unfair dismissal, he claimed automatic unfair dismissed under section 100(1)(e) of the Employment Rights Act 1996 for having taken steps to protect himself from danger.
Whilst the tribunal accepted that Mr Accattatis reasonably believed he was faced with being put at serious and imminent danger (due to the government announcing in February 2020 that COVID-19 posed an imminent threat to public health), the tribunal concluded that it was his duty to take steps to protect himself from danger, or to have clearly expressed the circumstances of the danger to his employer. Fortuna had reasonably concluded that Mr Accattatis' job could not be done from home and that he did not qualify for furlough but had instead suggested taking holiday or unpaid leave. Mr Accattatis' response was not only that he wanted to stay at home (which was agreed), but also to demand that he be allowed to work from home (on full pay) or be furloughed (on 80% of pay). These demands were not appropriate steps to protect himself from danger, so his claim failed.
This case reinforces the idea that an employee cannot simply refuse to attend work due to concerns over COVID -19, particularly if their employer has addressed their concerns and has undertaken the appropriate risk assessments within the workplace to accommodate working from the usual place of work.
Khatun v Winn
Ms Khatun was employed as a solicitor at Winn Solicitors Limited. In March 2020, in response to the first national lockdown, the firm decided to make changes to allow for greater workforce flexibility, furloughing 50% of their staff. The staff still working were expected to 'babysit' the cases of the furloughed staff and to agree to a variation of their employment contract, requiring them to go onto furlough leave or have their hours and pay reduced, on five days' notice.
On 23 March 2020, Ms Khatun's head of department explained to her that all staff would need to agree to the variations, which were non-negotiable, or face immediate dismissal. On 24 March 2020, the head of department sent the contract variation to all staff by email, explaining that staff were to sign it within 24 hours or it was highly likely that they would be dismissed. On 25 March 2020, Ms Khatun emailed the head of department, to explain that she could not agree to the variation of contract. After further email correspondence, the head of department had a five minute phone call with Ms Khatun, in which he re-iterated that the variation was non-negotiable and Ms Khatun would be dismissed if she did not agree to it. Ms Khutan said that she would consider the variation if and when the need for changes should arise. On 26 March 2020 Ms Khatun was dismissed.
Ms Khatun brought a claim for unfair dismissal.
The tribunal held that Ms Khatun's dismissal was unfair. The tribunal agreed with the firm that their reasons for implementing the variation were 'sound, good business reasons'. However, the dismissal of Ms Khatun was not a decision that fell within the 'band of reasonable responses'.
The tribunal concluded that the firm would not have needed to negotiate with three hundred employees; they would only have needed to have one meaningful discussion with Ms Khatun and was taken aback by a firm of solicitors having 'so little regard' for contractual terms and due process. The tribunal also took the view that the meeting on 23 March 2020 was a one-sided conversation and was not a meaningful discussion with Ms Khatun. It was clear to the tribunal that the directors of the firm had decided that, if Ms Khatun were to disagree with the variation to her contract, they would immediately proceed to dismiss her, without any process being applied. The firm acted quickly in dismissing Ms Khutan within 48 hours of sending her the variation to sign and Ms Khutan had not been offered the right to appeal. A reasonable employer would have done more.
This judgment demonstrates the importance of carrying out fair, meaningful consultation, prior to the dismissal of an employee who refuses to agree to contractual variations triggered by a genuine business need. This case is particularly relevant in light of COVID-19, as many employers have needed to implement rapid contractual changes in response to the economic challenges posed by the pandemic. However, as the case illustrates, the dismissal and re-engagement process can be high risk.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.