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6th July 2021

Were employees who stayed away from work due to COVID-19 automatically unfairly dismissed?


6th July 2021

Were employees who stayed away from work due to COVID-19 automatically unfairly dismissed?

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After the first COVID-19 related Tribunal claim was reported a couple of months ago (see my blog “Employee’s claim of unfair dismissal due to COVID-19 concerns was rejected by Tribunal“), COVID-19 related unfair dismissal cases are now being reported on a regular basis.

Examples of employees claiming they were unfairly dismissed and the Tribunal decisions

There have been three further reported cases recently focusing on whether the employee in question was automatically unfairly dismissed under sections 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA 1996). These provisions provide employees with protection from dismissal if the reason (or, if more than one, the principal reason) for their dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or others from the danger.

All the employees in these cases had less than two years’ service and therefore could not claim ordinary unfair dismissal.

Employee refusing to return to work due to concerns about his vulnerable father

In the case of Gibson v Lothian Leisure, Mr Gibson was a chef in a restaurant which closed temporarily in March 2020 due to the first COVID-19 lockdown. He was furloughed for some time and then he was asked to come into work prior to the re-opening of the restaurant. Mr Gibson raised concerns about the lack of PPE or other COVID-secure workplace precautions. He was particularly concerned about catching COVID-19 at work and passing it onto his father, who was clinically vulnerable. However, Mr Gibson was told to “shut up and get on with it” and then, with no prior discussion, he was dismissed with no notice by text message on 30 May 2020. The message said that Lothian Leisure was changing the format of the business and would be running it with a smaller team after the lockdown.

The Tribunal in this case held that Mr Gibson had been unfairly dismissed under section 100(1)(e) of the ERA 1996. He had reasonably believed that, due to the growing prevalence of COVID-19 and the lack of PPE, there were circumstances of serious and imminent danger and he had taken steps to protect his clinically vulnerable father from contracting the virus by not coming into work. Alternatively, since the wording of the employer’s text message suggested a possible redundancy situation, Mr Gibson had been unfairly selected for redundancy under section 105(3) because he had taken those steps.

The Tribunal awarded Mr Gibson pay in lieu of notice and untaken holiday, underpaid furlough pay, and pension contributions that had been deducted but not paid into the pension scheme. However, the Tribunal dismissed his claim under the whistleblowing provisions of the ERA 1996. Such a claim requires the whistleblowing disclosure to be made in the public interest and, given that Mr Gibson was only concerned about the welfare of his father, the Tribunal held that the public interest requirement had not been met in this case.

With the Government’s work from home order likely to come to an end on 19 July 2021, employers should bear in mind that some people will be nervous about coming back into the workplace. Employers should ensure that they listen to employees’ concerns and consider these concerns on a case-by-case basis, bearing in mind any risks of discrimination (for example in relation to pregnancy or disability).

Employee refusing to come into work due to public transport concerns

Mr Gibson’s case is to be contrasted with another recently reported case, Accattatis v Fortuna Group (London) Ltd.

Mr Accattatis worked for Fortuna Group (London) Ltd, which sells and distributes PPE. During March and April 2020, Mr Accattatis explained to his employer that he felt uncomfortable commuting to work using public transport and attending the office. He repeatedly asked to work from home or be placed on furlough. The company told Mr Accattatis that his job could not be done from home, and that furlough was not possible because the business was so busy, but offered him holiday or unpaid leave instead. Mr Accattatis declined this offer and, after three more requests to be furloughed, he was dismissed.

The Tribunal in this case held that Mr Accattatis was not automatically unfairly dismissed under section 100(1)(e) of the ERA 1996. The Tribunal accepted that his emails to the company together with the Government’s announcement at the time that COVID-19 posed a serious and imminent threat to public health meant that he reasonably believed there were circumstances of serious and imminent danger. However, section 100(1)(e) also requires the employee to have taken appropriate steps to protect himself from danger.

The company had reasonably concluded that Mr Accattatis’ job could not be done from home and that he did not qualify for furlough but had instead suggested taking holiday or unpaid leave therefore allowing him to remain at home. However, Mr Accattatis demanded that he be allowed to work from home on full pay or be furloughed (on 80% of pay). The Tribunal held that these demands were not appropriate steps to protect himself from danger and therefore his claim failed.

This case is only a first instance decision by a Tribunal and therefore it is not binding on any future cases. However, it is a useful reminder that the pandemic may not on its own justify a refusal to attend work under section 100(1)(e) if employers have reasonably tried to accommodate employees’ concerns. For example, even with many restrictions such as social distancing and the compulsory wearing of masks likely to come to an end on 19 July 2021, it will still be necessary for employers to comply with their health and safety obligations, conduct risk assessments and put in place measures to ensure the health and safety of employees in the workplace.

Employee who remained in Italy at the outbreak of the pandemic

Another recent case, Montanaro v Lansafe Ltd dealt with the situation where an employee was stuck in Italy at the start of the pandemic.

Mr Montanaro took what he believed to be authorised holiday from his employment with Lansafe Ltd for his sister’s wedding in Italy on 9 and 10 March 2020. While he was there, Italy went into lockdown and the UK government guidance stipulated 14 days’ isolation for people returning from Italy.

On 11 March 2020, the company sent a letter to Mr Montanaro at his London address (even though they knew he was in Italy) advising that he had been dismissed with effect from 6 March 2020 for failing to follow company procedures and taking unauthorised leave. In the absence of any communication from the company, Mr Montanaro was told by the client he was working for to continue to work remotely (which he did). He also sent further information to the company about travel restrictions in Italy. On 1 April 2020, the company sent Mr Montanaro his P45 and final payslip by email, which is when he found out he had been dismissed.

The Tribunal in this case held that there were circumstances of danger due to the pandemic and that Mr Montanaro reasonably believed the danger was serious and imminent. The Tribunal also held that Mr Montanaro had taken appropriate steps to protect himself and others. He had asked the company for advice, instructions and assistance with documentation and he had forwarded appropriate information about the situation in Italy. He was ready to receive communication and instructions for work on his mobile and laptop. When he didn’t hear from the company he communicated directly with the client and continued his work on a day-to-day basis.

The Tribunal held that Mr Montanaro had been dismissed because he had communicated the difficulties posed by the pandemic and proposed to work remotely from Italy, not because he had taken unauthorised holiday as alleged by the company. He had therefore been automatically unfairly dismissed under section 100(1)(e) of the ERA 1996.

Due to the pandemic, employers are facing more and more requests from employees to work remotely from abroad whether in the short or longer term.  There are many issues to be considered with such arrangements such as the immigration implications (i.e. whether the employee has the legal right to work in the host country); the employment implications (e.g. whether the employee will start to benefit from mandatory employment protections in the host country in terms of dismissal, pay and holidays); and the tax/social security implications (e.g. the risk of creating a permanent establishment for the employer in the host country).  Much will depend on the rules of the country that the employee will be working from and how long they intend to stay there.

For more advice in this area, please contact Jane Biddlecombe and she will be happy to discuss it further.

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