Covid-19 Dismissals- Winners And Losers
A number of employment tribunal cases are coming under scrutiny now where Covid-19 -19 concerns are being cited as reasons for unfair dismissal.
As an employer of domestic and household staff the circumstances will be of specific interest to you.
The following resumes of two cases where one complaint of unfair dismissal was upheld and damages awarded and another where the complaint was dismissed will shed some light on the issues.
In the first case the complainant worked as a chef which had to close during the first lockdown.
The complainant was put on furlough in the second week of March 2020. In the run-up to the end of the first lockdown, Mr Gibson’s employer asked him to undertake some work to help with the restaurant’s reopening. However, he raised concerns with his employer about: the possibility of his father, who was shielding because of health issues, catching coronavirus from him on his return to work and the absence of safe-working measures, in particular the lack of personal protective equipment (PPE) for staff.
Following some interaction between the complainant and his employer he was told to “shut up and get on with it”.
Ultimately he was dismissed with immediate effect. He received no notice pay and no holiday pay for accrued but untaken annual leave.
The employment tribunal held that he was unfairly dismissed after raising concerns over the lack of safe working measures in the workplace.
The tribunal was satisfied that Mr Gibson’s actions met the requirements of s.100 of the Employment Rights Act 1996. The “circumstances of danger” were the growing prevalence of coronavirus infections and the potential significant harm that could be done to Mr Gibson’s father if he contracted the virus from his son.
The employment tribunal ordered his employer to pay him a basic award of £6,562 and a compensatory award of £14,500. Mr Gibson was also given £1,200 for accrued but untaken holiday, £720 for unpaid furlough pay, £500 for unpaid notice pay, and £143 in respect of pension payments. This brought the total award to £23,625.
In this second case, the tribunal dismissed the unfair dismissal claim.
In March 2020, the first national lockdown started and employees where advised only to travel to work where absolutely necessary.
The employer told all employees that they could stay at home, but this would be on the basis of unpaid leave or holiday. The complainant asked to work from home on full pay, but was told that his role meant he could not do so. He then asked repeatedly to be placed on furlough. He said he was uncomfortable using public transport. His employer refused as they said he did not qualify for furlough. He was dismissed following a period that his employer said was unauthorised absence.
The tribunal found that the employer had justifiably concluded that the employee could not work from home and did not qualify for the furlough scheme and that his proposals to work from home on full pay or be furlough on 80% of pay were not “appropriate steps” to protect himself from the danger.
His claim therefore failed. In any event, the tribunal found that the reason for the dismissal was not that the employee proposed to take these steps.
COVID-19 by itself may not be enough to entitle employees to refuse to attend work and rely on section 100(1)(e) to protect them. This will particularly be the case where the employer has tried to accommodate the employee’s concerns. In this case, the employer had offered unpaid leave or holiday.
As other cases reach public domain we will keep you up to date.
The Graham Agency, keeping you informed,
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