Charlotte Davies

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COVID-19: Three lessons for employers from recent cases

Coronavirus / 11 May 2021

In recent weeks, we have started to see decisions from courts and tribunals on claims relating to COVID-19.  We consider below three cases that have an impact on employment law and summarise the key lessons for employers.

Can an employee who leaves the workplace over concerns about infecting others be dismissed fairly?

In Rodgers v Leeds Laser Cutting Ltd, the Claimant sent a message to his manager in March 2020 stating that he would be staying away from the workplace until lockdown had eased because he was concerned about infecting his vulnerable children.  He was dismissed and, lacking sufficient service to bring a claim for ordinary unfair dismissal, he brought a claim under sections 100(1)(d) and (e) of the Employment Rights Act 1996 (“ERA”).  This protects employees from dismissal where they have exercised their right to leave the workplace to take steps to protect themselves where they have a reasonable belief that there is serious and imminent danger.

The employment tribunal considered whether COVID-19 constituted a “serious and imminent danger” and found that this needed to be judged on what was known when the relevant facts took place.  The Claimant had breached self-isolation guidance, had not raised workplace danger as a specific concern and had not taken any steps to avert danger.  The claim failed and the tribunal held that accepting the Claimant’s submissions could lead to any employee being able to rely on sections 100(1)(d) and (e) ERA to leave the workplace simply as a result of the pandemic.

Can an employee be dismissed for refusing to wear a face mask?

In Kubilius v Kent Foods Ltd, the Claimant, a delivery driver, was required to wear a face mask and to take reasonable steps to safeguard his own health and safety as well as that of others.  He refused to wear a face mask at a customer’s site and was told that without it, droplets from his mouth could land on peoples’ face as a result of his elevated cab position.  The Claimant was summarily dismissed following an investigation and disciplinary process by his employer.

The employment tribunal held that the dismissal was fair finding that the employer had a genuine belief in misconduct and that it had carried out a reasonable investigation.  The claimant’s actions were a sufficient reason for dismissal.  In the tribunal’s view, dismissal did fall within the range of reasonable responses.

What are the courts saying about vaccination policies?

The recent European Court of Human Rights (”ECtHR”) case of Vavřička and others v Czech Republic provides useful guidance for employers who have implemented (or are considering implementing) a COVID-19 vaccination policy.  However, this is not an employment case, nor is it about COVID-19!  The case was about the Czech Republic’s statutory requirement for children to be vaccinated against nine diseases, but it is helpful by analogy in considering how other courts might approach the use of employers’ COVID-19 vaccination policies.

Six applicants complained to the ECtHR after they were penalised for non-compliance with the national vaccination policy.  They alleged breaches of Article 8 (the right to respect for private and family life) and Article 9 (the right to freedom of thought, conscience and religion) of the European Convention on Human Rights.

With regard to Article 8, the court ruled that there had been an interference with the applicants’ rights, however, this was justified.  The vaccination policy had a legitimate aim in protecting against serious disease.  The policy was also proportionate as the fines for non-compliance were not excessive.  With regard to Article 9, the court ruled that the applications were not based on religion but were concerned with the freedom of thought and conscience.  The court ruled that the applicants’ beliefs lacked any cogency which could attract the protection of Article 9.

Lessons for employers

Whilst two of the above cases are employment tribunal decisions and are therefore not binding, and whilst all of these cases turn on specific facts and are dependent on the state of play at an early stage in the pandemic, employers can still learn some helpful lessons:

  1. Implementing the latest government guidance and COVID-19 secure measures in the workplace are vital.  Employers who do so are likely to be able to reduce the risk associated with claims under sections 100(1)(d) and (e) ERA because, with the measures in place, employees will struggle to establish that the workplace is dangerous.

2. The employment tribunal will apply the usual principles of unfair dismissal when dealing with claims relating to COVID-19.  Whilst investigations into potential misconduct may be significantly more difficult in a remote environment, it is still key to get these right in order to successfully defend unfair dismissal (and other) claims.

3. Human rights arguments are likely to arise in the context of vaccination policy implementation.  However, the ECtHR case suggests that, depending on the exact facts, these may not bar vaccination policies.  The usual principles of justification and proportionality will apply and need to be considered and documented carefully at the early planning stage.

 

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This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: mailinglists@greenwoodsgrm.co.uk

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