COVID-19: What are the courts saying about health and safety dismissals?
Section 100(1)(e) Employment Rights Act 1996 (“ERA”) protects against automatic unfair dismissal if an employee takes “appropriate steps” to protect himself/herself (or others) in circumstances of danger which he/she reasonably believes to be “serious and imminent”. Importantly, employees do not need two years’ service to bring this type of claim.
Before the pandemic, claims under s.100(1)(e) ERA were rare – but they are now on the increase, particularly in the context of employees refusing to attend a place of work.
This Employment Law Now looks at two recent Employment Tribunal decisions on s.100(1)(e) ERA claims and is the latest in our series of updates relating to Covid-19 claims (our earlier update can be viewed here).
Was it automatically unfair to dismiss an employee who expressed concerns about commuting and attending the office during lockdown?
In Accattatis v Fortuna Group (London) Ltd, an employee who said he felt uncomfortable commuting and attending the office during lockdown and asked to be furloughed was not automatically unfairly dismissed under s.100(1)(e) ERA.
The Claimant in this case asked to work from home or be placed on furlough in March and April 2020 as he was uncomfortable using public transport and working in the office. He was told that his job could not be done from home and that furlough was not feasible (since the business was very busy) but that he could take holiday or unpaid leave instead. He was dismissed after further repeated requests to be furloughed and brought a claim for automatic unfair dismissal under section 100(1)(e) ERA (because he did not have sufficient service to bring an ordinary unfair dismissal claim) for having taken steps to protect himself from danger.
An Employment Tribunal (“ET”) held that the Claimant reasonably believed that there were circumstances of serious and imminent danger. This was clear given the context of government guidance at the time as well as the fact that the Claimant had sent emails expressing his concerns.
The ET went on to look at whether the Claimant had taken “appropriate steps” to protect himself, as required under s.100(1)(e). His demands to work from home on full pay or be furloughed on 80% pay were not appropriate steps when his employer had concluded that the role could not be done from home and that he did not qualify for furlough, and had also suggested he take holiday or unpaid leave. The claim therefore failed.
Was it automatically unfair to dismiss an employee for raising concerns about a lack of COVID-secure workplace measures?
In Gibson v Lothian Leisure, a chef who was furloughed during the first lockdown was automatically unfairly dismissed after raising concerns about a lack PPE and other COVID-secure measures.
The Claimant was asked to come into work before his restaurant re-opened but he was concerned about catching COVID-19 and passing it onto his clinically vulnerable father. He raised concerns about a lack of PPE and other COVID-secure measures but was told to “shut up and get on with it” and was then summarily dismissed.
An ET held that he had been unfairly dismissed under s.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, namely the increasing risks posed by COVID-19 and the corresponding risk of harm to his father. The Claimant had a reasonable belief in this because it had caused him to raise concerns about the lack of PPE. His claim succeeded and he was awarded pay in lieu of notice and untaken holiday, underpaid furlough pay, and pension contributions.
What are the key takeaways for employers?
Although not binding, these cases highlight the different ways in which Claimants may now seek to use s.100(1)(e) in the context of the pandemic, particularly where they do not have enough service to bring an ordinary unfair dismissal claim.
Where employees refuse to attend the workplace, employers will have a defence to a s.100(1)(e) claim if they can show that they have reasonably tried to accommodate an employee’s concerns.
Employers should note, however, that damages for a successful s.100(1)(e) claim are uncapped. It is therefore advisable to take legal advice at an early stage if your employees are raising health and safety concerns. Our expert Employment and Regulatory teams are on hand to advise you.
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: firstname.lastname@example.org