Refusing to attend work due to COVID-19 – is it a justifiable health and safety concern?

We recently made employers aware of the increasing number of unfair dismissal claims in relation to the government furlough scheme, and the importance keeping up to date with recent judgements of such cases in the article of Furlough Unfair Dismissal Cases Continue.

Since our article, we have seen numerous judgments being released for claims relating to COVID-19 and refusing to attend work, some of which have caught our eye.

In the recent case of Preen v Coolink and Mullins, the Tribunal found that an employee who had raised safety concerns in a conversation with his manager, Mr Mullins, via WhatsApp, shortly after the first national lockdown was announced, was not automatically unfairly dismissed.

In this case, Mr Preen was employed as an air conditioning and refrigeration engineer, in which he provided routine servicing and emergency call-outs.

On 23 March 2020, the first national lockdown was imposed, which restricted people to stay at home, and to only travel to and from work if they could not work from home, and where it was absolutely necessary. That same day, Mr Preen contacted Mr Mullins as to the effect of the lockdown restrictions on his work. Mr Preen did not agree with Mr Mullins’ approach, which was that they could continue to attend work but couldn’t socially gather at work, so responded with ‘we all have a responsibility to do what’s being asked. Therefore I am going to stay at home and would urge you to do the same. I understand that if any call out is urgent and/or essential I will come in to help out of course but unless this is the case I think it best we all do what’s being asked.’

Mr Mullins respected Mr Preen’s decision, but following Mr Preen’s refusal to come to work, he was dismissed for redundancy.

Mr Preen claimed that he had been unfairly dismissed for raising health and safety issues and/or because he had made a public interest disclosure.

The Tribunal dismissed Mr Preen’s claim in the entirety, despite finding that Mr Preen did raise genuine and reasonably held concerns about health and safety with his employer without the fear of being dismissed as a result. The reasoning for the claim’s dismissal is due to Mr Preen failing to meet the threshold to demonstrate that he had refused to attend work due to circumstances of danger, which he reasonably believed to be serious and imminent (instead of potentially harmful) to health and safety.

The Tribunal went on to say that, whilst COVID-19 is dangerous to many people, it doesn’t automatically create serious and imminent dangerous circumstances, without their being ‘something more’ for example, if someone is clinically extremely vulnerable.

Mr Preen’s whistleblowing claim failed as well, as he did not disclose information in his WhatsApp message to Mr Mullins.

One of the few discrimination claims on the grounds of religion and/or philosophical belief relating to COVID-19 we have seen is the case of X v Y 2020 (Case No. 2413947/2020), where the Tribunal found the Claimant’s fear of contracting COVID-19, so felt the need to protect herself and others, was not a philosophical belief under the Equality Act 2010.

The Claimant refused to attend her place due to her health and safety concerns about the workplace surrounding COVID-19, and was apprehensive of the increasing spread of the virus. As a result of her lack of attendance, her employer withheld her wages which lead to the Claimant issuing her claim of unlawful discrimination.

Judge Leach rejected the claim, on the basis that her fear did not amount to a belief, but was rather an opinion or viewpoint based on the present state of information available. The Judge went on to explain that the Claimant’s fear ‘is a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat’.

What do these judgments mean for employers?

Employers should remember that each case is decided on its own facts, and it can be difficult to forecast an outcome in this developing area of the law.

However, employers will need to be cautious of using the defence of COVID-19 creating unprecedented circumstances.  

For further assistance on Covid-19 related, or any other employment matters, please contact our Employment team.

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