Working safely and how to avoid dismissal claims arising out of the pandemic

The purpose of the Guidance is for organisations to use it to inform their planning and business operations from 19 July onwards. However, it is fair to say that there have been some criticisms of the Guidance. The TUC says it is a “recipe for chaos” and the Institute of Directors’ says it is a combination of “mixed messages” and “rather obvious statements”.

The Guidance is in fact a series of guides, which have the same layout, and which cover different types of work. Employers may need to use more than one of the guides. They contain a section Priority actions to take – what businesses should do to help protect staff and customers. This section sets out six steps to protect staff and customers during the pandemic:

• Complete a health and safety risk assessment that includes the risk from COVID-19
• Provide adequate ventilation
• Clean more often
• Turn away people with COVID-19 symptoms
• Enable people to check in at your venue
• Communicate and train

From 19 July, (in England), the Government is no longer instructing people to work from home. Whilst many people have already returned to their workplaces, others may be about to return for the first time in 16 months and some, understandably, will be nervous. If employers follow the appropriate Government Guidance, they will be better-placed to reassure their staff that they have taken all recommended steps to reduce the risk of transmission of coronavirus.

Following the Guidance could also be very relevant in defending Employment Tribunal claims arising out of pandemic-related health and safety issues in the workplace. This is illustrated by two recent Employment Tribunal decisions which considered health and safety dismissals under section 100(1) Employment Rights Act 1996 (ERA).

Section 100(1)(d) and (e) ERA provides that dismissal will be automatically unfair if the sole or principal reason for dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent:

• They left or refused to return to their place of work (or proposed to do so), it not being reasonable to expect them to avert the danger; and/or
• They took (or proposed to take) appropriate steps to protect themselves or others from the danger.

No qualifying period of service is needed to bring a claim under section 100(1) ERA and the compensatory award is uncapped. The burden to show an automatic unfair dismissal is on the Claimant.

Gibson v Lothian Leisure (April 2021)

The Claimant commenced employment as a chef in February 2019. Following the first national lockdown in March 2020, he was furloughed from work. In preparation for a possible re-opening, the Respondent wanted the Claimant to do some work. He raised concerns about the lack of PPE and other COVID -19 secure workplace precautions.

He was worried about catching COVID-19 at work and passing it on to his clinically vulnerable father who was shielding. The Respondent was very dismissive and told him to “shut up and get on with it”.

With no prior discussion, the Claimant was summarily dismissed by text on 30 May 2020 without notice or accrued holiday pay. The Respondent said it was changing the format of its business and would be running a smaller team after lockdown.

Note that the Respondent did not put in a response to the claim and did not appear at the hearing.

The Employment Tribunal held that the dismissal was automatically unfair under section 100(1)(e) because the Claimant had taken steps to protect his father in what he believed to be circumstances of serious and imminent danger.

Alternatively, it held that, because of the reasons given for his dismissal, the Claimant had been unfairly selected for redundancy under section 105(3) because he had taken those steps. Until the Claimant had voiced his concerns, he had been a successful and valued member of staff.

The decision is a useful reminder that claims under section 100(1)(e) ERA turn on the particular facts and merits of each case. Moreover, the steps that an employee takes due to a lack of COVID-19 secure workplace precautions will ultimately support (or not) a claim for automatic unfair dismissal.

Accattatis v Fortuna Group (London) Ltd (May 2021)

The Claimant commenced employment as a sales and project marketing co-ordinator in May 2018. The Respondent sells and distributes PPE.

Throughout March and April 2020, when the Respondent was unsurprisingly very busy, the Claimant repeatedly asked to work from home or be placed on furlough as he was uncomfortable using public transport and working in the office. He lived five miles away from work and travelled by bus. The Respondent explained that the Claimant’s job could not be done from home because of specific software that he needed and arranging remote access to it was too costly. Further, furlough was not possible because the business was so busy.

The Respondent sent a number of emails to staff about the Government Guidance applicable at that time, it advised about social distancing, provided hand sanitisers and doubled the number of hours of cleaning. The Respondent informed the Claimant (and all staff) that he could take holiday or unpaid leave if he wanted to self-isolate and not come into work. The Claimant declined and made three further requests to be furloughed. On the date of his final request, 21 April 2020, the Claimant was dismissed.

The Claimant alleged that his dismissal was automatically unfair under section 100(1)(e) of ERA as he had been dismissed for taking steps to protect himself from danger. The claim was dismissed.

The Employment Tribunal found that there were circumstances of danger which an employee could reasonably have believed to be serious and imminent. However, the Claimant’s demands to work from home (on full pay) or be furloughed (on 80% pay) were not appropriate steps to protect himself from danger. The Respondent was justified in concluding that the Claimant could not work from home and did not qualify for the furlough scheme. The Claimant was a key worker and the Respondent’s business was at the forefront of distributing PPE. Moreover, the Claimant had been offered to take holiday or unpaid leave and had declined.

These are only first instance judgments and do not need to be followed by other Employment Tribunals. However, they provide very useful guidance to employers and highlight the importance of putting in place the appropriate measures to make the workplace COVID-19 secure and communicating those measures to staff.

See here for our article in the Spring newsletter about other Employment Tribunal pandemic-related claims.

Don’t forget about section 44 ERA which protects against detriment for raising health and safety concerns. Detriment could mean for example, suspension or disciplinary action.

On 31 May 2021, the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 came into force and extended protection from detriment to workers and not just employees. This extension of protection came about because of the case R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another. The High Court held that the UK had failed to properly implement Article 8(4) and (5) of the EU Health and Safety Framework Directive by limiting protection from detriment on health and safety grounds under section 44 ERA to employees only and excluding workers from protection.   

Finally, looking at a very different but still topical issue, the variation of contracts of employment, the Employment Tribunal held that dismissal of an employee who refused to agree to the variation was unfair.

Khatun v Winn Solicitors Ltd (April 2021)

The Claimant was employed as a solicitor and she commenced employment in April 2015.

In March 2020, the Respondent furloughed 50% of their staff because of a downturn in work. The staff that were not furloughed were expected to “babysit” the cases of the furloughed staff, work from home and agree to a variation of their employment contract. The variation required them to go on furlough or have their hours and pay reduced (by 20%) on five days’ notice.

The Claimant’s Head of Department informed her that she would not be included in the 50% of staff to be furloughed. He said that the variation was non-negotiable and that she was required to sign it within 24 hours or she would face dismissal.

The Claimant said that she would consider the variation if, and when the need for such changes should arise. In the meantime, she was happy to continue working under the terms of her current contract. The Claimant was the only person out of 300 members of staff who did not agree the variation.

The Claimant’s access to IT was revoked on 26 March 2020 and when she contacted the IT Help Desk she was told to speak to her Head of Department. That was when she learned that she had been dismissed. She subsequently brought a claim for unfair dismissal under sections 94 (dismissal for some other substantial reason) and 98 ERA (the Respondent had not acted reasonably in relation to her dismissal).

The Employment Tribunal held that the dismissal was unfair. Whilst it agreed with the Respondent that their reasons for implementing the variation were “sound, good business reasons” and this was a potentially fair SOSR reason for dismissal, the Claimant’s dismissal did not fall within the band of reasonable responses.

In reaching its decision, the Employment Tribunal took into account the fact that there had been no meaningful consultation with the Claimant. The Respondent said that consultation with 300 people was not feasible but as the Employment Tribunal stated, consultation was only needed with one person, the Claimant, as everyone else had accepted the variation. Further, the Respondent had not engaged in a reasonable process. The dismissal took place within 48 hours of the Claimant receiving the variation and she was not offered the right to appeal. A reasonable employer would have done more and explored alternatives to dismissal. For instance, furloughing the Claimant was one possibility. The case has now been listed for a one-day remedy hearing.

This case demonstrates that dismissal for refusal to agree changes to the terms and conditions of employment will only be fair if the employer has a sound business reason for the changes and carries out fair process, including meaningful consultation with the employees concerned. In the context of the pandemic, this case is useful for employers to be aware of if they are about to implement contractual changes.

Working safely guidance

If you need advice on working safely and what the latest Government Guidance and best practice is, get in touch with our employment team.