An employment tribunal has held in Gibson v Lothian Leisure that an employee had been unfairly dismissed under section 100(1)(e) of the Employment Rights Act 1996 (ERA) for raising health and safety concerns about lack of PPE, or other workplace Covid-secure measures, out of concern for his clinically vulnerable father.
The claimant worked as a chef in a restaurant. The restaurant closed temporarily in March 2020 due to the first Covid-19 lockdown and the claimant was furloughed. Before re-opening the restaurant Lothian Leisure asked the claimant to come into work. The claimant raised concerns about the lack of PPE or other Covid-secure workplace precautions, but Lothian Leisure told him to "shut up and get on with it". The claimant was then dismissed summarily by a text message which said that Lothian Leisure was changing the format of the business and would be running it with a smaller team after the lockdown. He was not paid any notice pay or accrued holiday pay.
The tribunal held that the claimant had been unfairly dismissed under section 100(1)(e) ERA because he had taken steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger. The circumstances of danger were the growing prevalence of Covid-19 and the potential significant harm to the claimant's father if he caught the virus. Looking at the wording of the respondent's text message which suggested a possible redundancy situation the tribunal held that, alternatively, the claimant had been unfairly selected for redundancy because he had taken the steps that he had.
Take note: The decision in Gibson shows that it is possible for a claim for unfair dismissal under section 100(1)(e) ERA to succeed. 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. His subsequent dismissal in connection with those steps was consequently unfair.
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