Covid-19 Unfair Dismissals: The Judgements are continuing to come in

With some Covid-19 tribunal judgements now starting to trickle through, it is important that employers stay up to date with the latest decisions, as these can indicate the key factors that tribunals will focus on.

The recent case of Rodgers v Leeds Laser Cutting Ltd found that the dismissal of an employee who refused to return to work until after lockdown had ended due to concerns about the health of his children was not automatically unfair. The decision comes hot on the heels of the decision in Kubilius v Kent Foods Ltd , another recent Covid-19 related unfair dismissal case, where the tribunal found that a lorry driver was fairly dismissed where the reason for that dismissal was his refusal to wear a face mask. For further information on this case please see our article here.

Facts

Mr Rodgers worked as a laser operator for Leeds Laser Cutting Ltd in a large warehouse-type space with a small number of other employees. During lockdown, additional safety measures were introduced at the warehouse, including staggered start and finish times, social distancing and masks for staff if staff wanted to use them.

Mr Rodgers was concerned about infecting his vulnerable children, and contacted his manager on 29 March 2020 to say that he would not be returning to work until the lockdown eased. Whilst Mr Rodgers did not make further contact,  he obtained a self-isolation certificate for the period from 28 March 2020 to 3 April 2020 due to a cough, and during his period of self-isolation he also drove his friend to the hospital.

Mr Rodgers was later dismissed, and bought a claim for automatic unfair dismissal.

Under s100 ERA an employee is protected against dismissal where they reasonably believe there to be serious and imminent danger and exercise their rights to leave the workplace, or take or propose appropriate steps to protect themselves or other persons from the danger. 

The Employment Tribunal dismissed Mr Rodgers’ claim, and concluded that:

• Mr Rodgers’ decision to stay off work was not directly linked to his working conditions;
• he had not demonstrated that he believed his workplace put him in imminent danger;
• he had failed to mention specific workplace concerns in his text message to his manager stating he would remain at home, or raise formal complaints about safety measures;
• he had not indicated that he would return to work if other safety measures were introduced;
• he had not raised formal complaints about safety measures; and
• he did not reasonably believe that there were circumstances of serious and imminent danger within the workplace, but he believed these circumstances were all around.

The tribunal reached a similar decision in Accattatis v Fortuna Group (London) Limited (“FGL”) where it held that an employee who asked to be furloughed due to Covid-19 concerns was not unfairly dismissed.  

Facts

Mr Accattatis was employed as a sales and project marketing co-ordinator selling and distributing PPE for FGL. Mr Accattatis attended work up until 30 March 2020, when he began a period of self-isolation due to Covid-19 symptoms.

Mr Accattatis sent a formal request to FGL to place him on furlough due to Covid-19 symptoms and concerns about returning to the office, but FGL told Mr Accattatis that they could not put him on furlough, as he was not a vulnerable person, and his role was still a viable role at that time (and in fact was desperately needed at a time of PPE shortage).

Mr Accattatis continued to ask to be furloughed, or to be allowed to work from home (without saying how he could do that).

FGL refused to do either of those things, and asked him to return to work as soon as possible. FGL dismissed Mr Accattatis on 21 April 2020, and Mr Accattatis bought a claim for automatic unfair dismissal under s100 ERA.  

The Tribunal dismissed the claim, saying that, if Mr Accattatis had two years’ service a claim for unfair dismissal would probably had succeeded, but that his claim under s100 failed, because:

• whilst Mr Accattatis did reasonably believe the danger to be serious or imminent, his demands for furlough or working from home were not appropriate steps to protect him from danger (or indeed were not possible in the circumstances); and
• the sole or principal reason for the dismissal was not Mr Accattatis’ failure to take or propose appropriate steps, but was instead FGL’s desire to dismiss Mr Accattatis due his difficult and challenging behaviour before he obtained the qualifying two years’ service he would have needed to bring an unfair dismissal claim..

What do these judgments mean for employers?

Each case is decided on its own facts, and employers should not assume that if a similar situation arises, any potential case against the employer will be dismissed. However, these decisions serve as a timely reminder to employers that they should ensure that:

• they follow Government Guidance in relation to the safety measures required at work as a result of the Covid-19 pandemic;
• they are mindful of staff concerns or anxieties about returning to work and consider any adjustments that will make the transition easier for employees;
• there is clear communication with employees about safety measures in the workplace and return to work plans; and
• employees are aware of how to raise any concerns about returning to the workplace.

For further assistance on Covid-19 related, or any other employment matters, please contact our Employment Team who will be more than happy to assist you.