Dismissing employees for expressing concerns about COVID-19 – what should employers do, and not do, to avoid liability.

Despite all restrictions set to soon be lifted, COVID-19 is very much here to stay, especially with the Delta variant being significantly more transmissible than the variant it has largely replaced.  As the first unfair dismissal cases relating to COVID-19 work their way through the tribunal system, we can see some patterns emerging and important lessons for employers. In this blog, Ellie considers this evolving area of case law and highlights the key takeaways for employers looking to grapple with these issues longer term.

Accattatis v Fortuna Group

A common scenario encountered by employers throughout the pandemic has been dealing with employees who are worried about returning to work due to the potential impact on their personal health & safety.  We know of many clients who have found themselves in that situation, and our advice has always been to engage in a process of consultation with their employees to try to understand their viewpoint and try to overcome any concerns by offering reassurance around the safety measures in place and/or a reasonable alternative.

This was exactly the predicament that Fortuna Group found themselves in – Mr Accattatis did not want to return to work and made repeats requests to work from home or to be furloughed.  Fortuna considered his requests, but ultimately could not agree to them, as his job could not be done from home, and they were too busy for him to be furloughed.  They did, however, suggest that he take holiday or unpaid leave, both of which he declined.

When Mr Accattatis was dismissed, he asserted that the dismissal was automatically unfair under section 100(1)(e) Employment Rights Act 1996: he asserted that he reasonably believed there were circumstances of serious and imminent harm in returning to the workplace.  Because of his short service, Mr Accattatis could not pursue a claim for ordinary unfair dismissal, and so this was the only cause of action he had.  The Tribunal disagreed – while they accepted that Mr Accattatis did have a reasonable belief in serious and imminent danger, the Tribunal was not satisfied that Mr Accattatis had taken appropriate steps to protect himself from danger by refusing to take holiday or unpaid leave, both of which Fortuna Group had offered as an alternative to returning to the office.  For those reasons, the dismissal was found not to be automatically unfair.

A similar issue arose in the case of Rodgers v Leeds Laser Cutting.

Rodgers v Leeds Laser Cutting

In this case the ET dismissed a claim of automatic unfair dismissal from an employee who expressed concerns regarding the threat of Covid in his workplace as he was worried about infecting his children. Soon after the first UK lockdown was announced, Leeds Laser Cutting communicated to all employees that they would be putting measures in place to allow normal operations to continue. However, Mr Rodgers contacted his manager and stated that he would not return to work ‘until lockdown has eased.’

Here, the ET concluded that Mr Rodgers did not possess a reasonable belief of serious and imminent danger in the workplace for several reasons. First, it was found that despite expressing this concern Mr Rodgers had himself breached NHS self-isolation guidance when taking a friend to a hospital appointment. Further, in his contact with his manager, he did not explicitly raise workplace concerns which, it was held, would have been difficult for him to do as his employer was complying with the latest government guidance. It therefore appeared to the Tribunal that Mr Rodgers concerns were with the virus in general and not his workplace specifically, and he had refrained from taking steps to protect himself from danger.

So far so good for employers, but, as the next case of Gibson v Lothian Leisure shows, it’s not all plain sailing and mistakes can be made relatively easily.

Gibson v Lothian Leisure

In the case of Gibson v Lothian Leisure, the Claimant, Mr Gibson, was held to be unfairly dismissed after he expressed concerns about the safety of his workplace.  Mr Gibson raised concerns about the lack of compliance with Covid safety precautions and specifically mentioned a lack of PPE as a primary concern. He was especially worried about attending work as his father was clinically vulnerable. However, after expressing his concerns to his employer he received a negative response and was told to ‘shut up and get on with it.’ With no prior discussion and no attempt being made to alleviate his concerns, he was dismissed via text without notice or holiday pay.

Here, perhaps unsurprisingly, it was held that Mr Gibson had been (automatically) unfairly dismissed. The claim was brought under section 100 ERA with the threatened danger being the potential infection of Mr Gibson’s vulnerable father in which he reasonably believed could occur due to the lack of PPE and Covid precautions in place. Thus, in expressing his concerns for his father, Mr Gibson was found to have taken appropriate steps to protect him from the danger and, as his employer, Lothian Leisure had made no alterations to alleviate those concerns, he was unfairly dismissed.

Key Takeaways for Employers

Despite these decisions lacking binding precedent, and being decided on the specific facts of each case, there are still significant takeaways for employers who may find themselves in such a situation in future:

• Employees with less than 2 years’ continuous service may not be able to assert a claim for ordinary unfair dismissal, but they can pursue a claim for “automatic” unfair dismissal where they can show that the reason, or principal reason, for their dismissal was that they were taking appropriate steps to protect themselves or others (our emphasis) from serious and imminent danger. This type of claim is available to any employee from the first day of their employment. Our advice is to treat all employees who express concerns regarding their or others’ health & safety the same, irrespective of their length of service, and to try to resolve those concerns wherever possible.
• As both Accattatis v Fortuna Group and Rodgers v Leeds Laser Cutting highlight, it is not just the employers’ responses to the concerns of employees that are important, Tribunals will expect employees to help themselves by clearly and explicitly explaining their concerns to their employer and demonstrating steps they have taken themselves to reduce the risk of the danger. Employees who fail to do so and raise generic complaints without identifying any underlying risk or specific health & safety concern, will seriously undermine the strength of their case.
• By contrast, employers who engage in meaningful dialogue with their employees and take their complaints seriously, having adopted Government guidance to make their workplaces COVID-secure, will have a strong defence to any claims for unfair dismissal in the future.