Employment Law – ‘Spotlight Edition’ for July 2021
For our first spotlight edition we have focused upon two topical employment tribunal cases which have been decided in June 2021. On the face of it, the two cases appear similar as they each concern claims for unfair dismissal and contain complaints in relation to COVID-measures. The outcome in each case was different, with one party being successful and the other unsuccessful, however they demonstrate the types of considerations being taken into account by the employment tribunal when determining claims brought during the pandemic.
Claimant was unfairly dismissed for raising concerns about lack of COVID-secure workplace measures
Gibson v Lothian Leisure ET (Employment Judge Brewer).
The claimant, Mr Gibson, was employed by Lothian Leisure (LL) as a chef from February 2019. LL was faced with lockdown in March 2020 and as a result of the pandemic, its restaurant closed temporarily. Mr Gibson was placed on furlough at this time.
Mr Gibson’s father had a number of medical issues meaning that he was clinically vulnerable and required to shield during the lockdown.
Whilst on furlough, LL contacted Mr Gibson requesting his return to work to undertake a few jobs before the lockdown period came to an end. Mr Gibson raised concerns at this time that his comings and goings to work meant his father could catch Covid 19. LL was not offering to provide any personal protective equipment for staff and they had no intention of requiring staff to take precautions and create a Covid secure working environment.
LL’s response to Mr Gibson’s concerns was robustly negative, and he was told to “shut up and get on with it”.
With no prior discussion or consultation, Mr Gibson’s employment was terminated summarily by text message on 30 May 2020. LL’s evidence was that they were changing the formatting of the business and would need a smaller team going forward. Mr Gibson received no notice pay and no pay for accrued untaken annual leave.
Mr Gibson brought a claim against LL for unfair dismissal, notice pay, holiday and unlawful deduction of wages.
Grounds for automatic unfair dismissal
Certain reasons for dismissal can be described as ‘automatically unfair’, meaning that if one of these reasons is established by a claimant, the employment tribunal must find the dismissal unfair. Consideration of the reasonableness for the dismissal is irrelevant, and instead, tribunals will focus on whether the prohibited reason was the reason or principal reason for dismissal. The burden is upon the claimant to show an automatic unfair dismissal and that there was a comparator employee who was not dismissed.
Section 100 of the Employment Rights Act 1996 provides that a dismissal for a prohibited health and safety reason is automatically unfair. Protection against dismissal will be given to an employee who takes (or proposes to take) certain action to protect themselves from danger in the workplace which they reasonably believe exists is serious and imminent under section 100 (1)(e). There is no qualifying length of service.
Serious and imminent danger
‘Serious and imminent’ is a question of fact and will vary from case to case, however it will involve liability or exposure to harm or injury (the danger does not need to be life-threatening).
On 14 February 2020 the Secretary of State for Health and Social Care declared that the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health.
In the above case, the circumstance of danger was the increase of infections by the Covid 19 virus and the potential significant harm that could be done to Mr Gibson’s father. Mr Gibson reasonably believed this to be serious and imminent, causing him to raise the issue of personal protective equipment.
The tribunal found that Mr Gibson had taken appropriate steps to protect his father from the danger as a result of raising his concerns. Alternatively, Mr Gibson had been unfairly selected for redundancy because he had taken appropriate steps to protect his father. Prior to raising his concerns, Mr Gibson had been a valued member of staff with no prior problems.
Claimant was not unfairly dismissed after expressing concerns about commuting, attending the office during lockdown, and asking to be furloughed
Accattatis v Fortuna Group (London) Ltd (Employment Judge Alliott)
Mr Accattatis was employed by Fortuna Group (London) Ltd (FGL) as a sales and project marketing co-ordinator from May 2018. FGL sell and distribute personal protective equipment and were therefore incredibly busy from March 2020 due to the global pandemic.
Prior to March 2020, the tribunal found there had been an undercurrent of antagonism between the two parties, however Mr Accattatis’ work performance was good.
During March and April 2020, Mr Accattatis repeatedly asked to work from home or be placed on furlough as he felt uncomfortable using public transport and/or working in the office (he was not a vulnerable person). Mr Accattatis lived approximately 5 miles from the office and ordinarily travelled to work by bus as he had no car or other means of transport.
FGL told Mr Accattatis that his job could not be done from home as he was required on the premises for deliveries, and that furlough was not possible due to the high demand of PPE. FGL offered paid leave as part of their holiday entitlement or unpaid leave should staff want to self-isolate. Mr Accattatis did not accept this and asked three more times to be furloughed.
On 21 April 2020, Mr Accattatis was dismissed by email. He did not have sufficient service to claim ordinary unfair dismissal but instead alleged that he had been automatically unfairly dismissed for having taken steps to protect himself from serious and imminent danger (see above ‘grounds for automatic unfair dismissal’).
The tribunal found that Mr Accattatis was a key worker whose job could not be done from home, however they acknowledged that the incidence or transmission of coronavirus constitutes a serious and imminent threat. This, together with Mr Accattatis’ emails expressing concerns about commuting and attending the office, showed he reasonably believes there were circumstances of serious and imminent danger.
However, the tribunal then went on to consider whether Mr Accattatis took or proposed to take appropriate steps to protect him or other persons from the danger or took steps to communicate these circumstances to FGL by appropriate means (as is required under section 100 (e) of the Employment Rights Act 1996).
FGL 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.
Although the above cases are not binding, they are a stark reminder that the pandemic may or may not justify a refusal to attend work under section 100(1)(e) of the Employment Rights Act 1996. Key considerations for tribunals will be whether the employer has reasonably tried to accommodate the employees’ concerns (and reduce the transmission risk) and/or whether the employee took appropriate steps to protect him/herself from danger.
For further information or advice on the above employment law rights, please contact Hatchers Solicitors Employment Law Team on 01743 248545 or email@example.com.
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