A reminder of the law
Dismissing an employee is automatically unfair if there were circumstances of danger that the employee reasonably believed to be serious and imminent, and:
- if they couldn't reasonably have been expected to avoid it, they left (or proposed to leave) or (while the danger persisted) refused to return, or
- they took (or proposed to take) appropriate steps to protect themselves or others.
Employees and workers are also protected in these circumstances from being subjected to a detriment (e.g. suspension, deducted pay, or – in the case of a worker – having their contract terminated).
An employee was furloughed by a restaurant that was forced to temporarily close during the first COVID-19 lockdown. In the run up to possible re-opening, they requested the employee come into work to 'help out for a bit'.
The employee raised health and safety concerns with them, as he was concerned about the possibility that his clinically vulnerable father would catch COVID-19 from him. The employer provided no PPE to staff and it appeared that it had no intention of requiring staff to take COVID-secure workplace precautions.
When the employee raised these issues again, he was told to 'shut up and get on with it'. His employment was terminated with immediate effect by text message.
The tribunal decided the employee had been automatically unfairly dismissed. The circumstances of danger were the growing prevalence of COVID-19 infection and the potential significant harm that could be done to his father. The employee reasonably believed that this was a serious and imminent danger, leading him to raise concerns about the lack of PPE. Until the employee had raised those concerns, he had been a successful and valued member of staff. The tribunal ruled that Mr Gibson had been dismissed because he had taken steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger.
An employee worked for a company that sold and distributed PPE. His job included accepting daily deliveries, entering details in the company's system and photographing and organising promotional materials. In March 2020, the company was at the forefront of significant demands for PPE and its staff were viewed as 'key workers'. It introduced extra cleaning and was working towards distancing staff in the workplace.
Around 25th March 2020, the employee requested to work from home. His request was denied because his job required him to be physically present. The company's policy was that those in his situation could take paid or unpaid leave.
On 30th March 2020, he contracted symptoms of COVID-19 and was advised to self-isolate. After several weeks, he was still experiencing flu-like symptoms and asked if he could be furloughed, but his request was refused. He responded that he was not comfortable coming into work on public transport during lockdown and was concerned that he wouldn't be able to pay his bills (as he was only receiving statutory sick pay).
He claimed that considering government guidance on working from home and HMRC advice that the furlough grant was payable to those who were self-isolating, he should be either allowed to work from home or furloughed. After several more exchanges, he was dismissed with his contractual notice.
The employee claimed unfair dismissal, but failed. The tribunal accepted that he reasonably believed the danger from COVID-19 to be serious or imminent, but found that he hadn't taken appropriate steps to protect himself or others. He could've remained at home, not travelled on public transport and not gone into the office – that had always been allowed by his employer through paid or unpaid leave. Instead, he didn't specifically identify any concerns about returning to work; nor did he explore ways in which such concerns might be mitigated. He appeared more concerned about losing income. His demands for furlough (on 80% pay) or to work from home (on full pay) weren't appropriate as they were obviously economically motivated. His employer had justifiably concluded that he couldn't work from home and didn't qualify for the furlough scheme.
What this means for you
These cases concern events in the early stages of the pandemic, when less was known about the virus and before vaccines had been developed and approved.
Not for the first time, they show the importance of being able to demonstrate that you have implemented appropriate COVID-related health and safety measures. This is now somewhat easier since the government published its sector-specific guidance and the HSE published guidance on making workplaces COVID-secure.
However, don't assume that this alone will automatically protect you. If your employee (or worker) has a reasonable belief that your workplace poses a serious and imminent risk, based on evidence about COVID-19 available at the time, they will be protected. Talk to anyone who has concerns and, if these are valid, make adjustments where you can.
On the plus side, these cases confirm that staff can't just express vague anxieties about their working environment:
- They'll normally be expected to explain clearly why they believe the workplace is dangerous and give you (1) the opportunity to explain the steps you have in place to protect them and (2) time to consider what else you can do to protect them or deal with their concerns.
- They must be willing to take individual precautions to protect themselves and follow all reasonable management instructions put in place to protect them.
- They must be able to show that the risk is serious and imminent despite anything they and you can do to reduce it.
If you need specific advice about your emoployees then call our specialist Employment Law Team on 0800 84 94 101 or click here.