Employment Tribunals: key lessons from Covid cases

As the end of the year approaches, I find myself looking back at the lessons which can be learned from another turbulent 12 months for employers.

During 2021, the Employment Tribunals have grappled with numerous cases about the way employers have responded to the pandemic.  In my view there are a couple of key lessons to be learned.

Fairness, and consideration of alternatives, is key

Firstly, in unfair dismissal cases, the overall fairness of the situation is still of upmost importance.  This isn’t anything new in employment law but recent cases highlight that even extreme circumstances do not excuse an employer’s failure to follow a fair procedure before a dismissal takes place.  In Mhindurwa v Lovingangels Care Ltd, Ms Mhindurwa was made redundant from her role as a live in carer after the client she was looking after went into a care home during lockdown.  Ms Mhindurwa argued that the employer’s failure to use the furlough scheme as an alternative to redundancy meant that her dismissal was unfair.  It’s important to remember that whilst the furlough scheme was available, there was no obligation on employers to use it and it wasn’t intended to be used where roles were not sustainable in the longer term.  The Tribunal’s view was that the employer acted unfairly because of a complete failure to consider alternatives which could have prevented Ms Mhindurwa from being dismissal – her claim for unfair dismissal therefore suceeeded.

In Khatum v Winn Solicitors Ltd, the solicitors firm tried to force through changes to employee’s contracts, including Ms Khatum’s, to deal with its response to the pandemic.  Ms Khatum objected to some of the changes and was dismissed.  Even though the firm was found to have had “sound, good business reasons” for wanting to make changes, its lack of consultation and failure to consider alternatives made the dismissal unfair.

Protection for employees who face a risk of ‘serious and imminent danger’ is limited

 Employees who refuse to return to work or who take steps to protect themselves or others in the face of ‘serious and imminent danger’ can be protected from unfair dismissal under section 100 of the Employment Rights Act 1996.  However, recent cases arising from the pandemic demonstrate that protections can be limited and must relate to workplace concerns.

In Moore v Ecoscape UK Ltd, the employer was not found to have constructively dismissed Ms Moore after it asked her to return to working from the office.  Ecoscape had carried out Covid specific risk assessments, made adjustments to office access and sanitisation procedures and provided Ms Moore with a separate working space with her own equipment.  The Tribunal found that Ms Moore’s Covid concerns related to a general fear about leaving her home and her perception that danger was everywhere, rather than specific concerns about the Ecoscape workplace.  Ms Moore had failed to enter into discussions with Ecoscape about the measures which had been implemented and she refused to visit the workplace to review the arrangements which had been implemented.  The Tribunal found that Ecoscape had not acted unreasonably and so Ms Moore’s claim for constructive dismissal failed.

We’ll be looking at lessons to be learned from key Covid cases as well as numerous other employment law hot topics in our 2022 employment law update on 13 and 18 January.  Please let me know or click here if you’d like to book a place.