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Pointers & Pitfalls For Employers Following The Latest COVID Tribunal Cases

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In recent months, the COVID tribunal cases have started to trickle in. All this week, we provide an overview of the decisions made so far along with some helpful pointers for employers to avoid the same pitfalls.

The first four cases were brought under the same legislation, s 100 (e) of the Employment Rights Act 1996, which allows claims to be brought by employees who say they had concerns for their health and safety, resulting in their employment being terminated. Each case turned on its unique set of facts and the variations make for an interesting read.

Case 1: Does an employer's refusal to let an employee work from home or be furloughed mean that the dismissal is unfair?

The employee, Mr Accattatis , was a sales and project co-ordinator for a company which sold and distributed personal protective equipment (PPE).

Before the first lockdown came into force, the employer had informed its staff that they would remain open and be classed as keyworkers. All staff were notified about the Covid measures that had been put in place to protect them and told that “we respect any desire by individual employees to refrain from work at this difficult time so any requests for immediate paid or unpaid leave will be approved.”

Mr Accattatis continued to attend work by bus until 30 March 2020, when he developed Covid symptoms and was advised to self-isolate. But at the end of his period of self isolation, he was reluctant to return. He therefore requested to either work from home for the foreseeable future or be placed on furlough as this would be better for him financially. The company was unable to grant his request because as a keyworker who was providing PPE at a critical time, furlough was not an option – and due to the nature of the work, homeworking wasn’t an option either.

There had always been friction between Mr Accattatis and the company but his persistent refusal to attend work meant that his employment was terminated on 21 April 2020, citing “a general ongoing failure to comply with our company policies.” He brought a claim of automatic unfair dismissal, stating that his employment had ended after he raised concerns about his health and safety.

It was accepted by the tribunal that Mr Accattatis did, like many others, feel there was a genuine danger of contracting the virus, but he had not raised any specific concerns with the company.

In the tribunal’s opinion, demanding to work from home or be furloughed was not enough to be classed as an “appropriate step” which meant that his claim did not succeed. They found that he had failed to take appropriate steps to protect his health – instead he was seeking to protect his financial position by benefiting from the government job retention scheme.

The judgment confirms that Mr Accattatis was dismissed for being a challenging employee who had sent impertinent emails where he demanded a change to his working arrangement and the employer had purposely taken action when it did to prevent him from achieving two years’ service, not because of his reluctance to use public transport or his general concerns over COVID.

His claim was dismissed.

Case 2: Is it safe to dismiss an employee who has concerns over his father’s health?

This employee was a chef but the restaurant was faced with lockdown in March 2020, as were many businesses, due to the pandemic. During the second week of March 2020, Mr Gibson was placed on furlough.

Early into his furlough leave, the employer asked if he could “come in and help out a bit” but the employee was reluctant to do so because he lived with his father who was shielding due to various medical conditions. During the communications, the employee expressed concerns about the fact that there was no personal protective equipment (PPE) in the workplace so he was worried about his exposure to the virus.

The employer did not bother to engage in any further communication with Mr Gibson and instead, decided to terminate his employment 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, was satisfied that Mr Gibson had genuine concerns about the risks that he would be exposed to in the workplace which was the reason he would not return. They also factored in that he had raised his concerns about the lack of PPE but instead of taking action to rectify this, they opted to dismiss him which meant that it was automatically unfair and Mr Gibson’s claim succeeded.

Case 3: How safe is it to dismiss an employee who fails to return home from their travels?

Well, it depends on the reasons for their refusal.

Mr Montanaro travelled to Italy for his sisters’ wedding in March 2020. However, while he was there, the Italian national lockdown came into force which meant that he was unable to travel back home as planned. He kept his employer informed and they told him that he was required to fly back to London – this is despite being aware of the unfolding situation in Italy and the flight restrictions that were in place.

Unsurprisingly, he was not able to return as requested. He informed the employer that he was reluctant to travel because he was worried about contracting the virus. The employee had also put forward alternatives in that he could work remotely from Italy until it was deemed safe to travel back – but the company did not agree and continued to record his time off as being unauthorised.

Subsequently, the company resorted to dismissing him because he had taken, what they said was, a period of unauthorised leave.

When making its decision, the tribunal found that there were clear “circumstances of danger,” and on the basis that the employee reasonably believed that the coronavirus could lead to his serious illness or death, Mr Montanaro had taken the appropriate steps to protect his health – this meant that his dismissal was unfair.

Case 4: Is it unreasonable to expect an employee to attend work when we have implemented the necessary safety measures?

The Claimant, Mr Rodgers worked in a large warehouse which was described as about the size of half a football pitch. There were usually only 5 others working in the area.

The employer had implemented a number of Covid secure measures under the advice of an external professional. These included the introduction of social distancing, the requirement for regular hand washing and the provision of a mask dispenser near the entrance.

Mr Rodgers went into self-isolation on 16 March 2020 after his colleague contracted COVID, although he did not test positive for the virus. He did, however, develop a cough on or about 25 March 2020 which was believed to be caused by the dust and temperature in the warehouse. He continued to work the following two days but on 27 March 2020, he decided to tell his employer that he would not be coming back to work “until the lockdown has eased.”

Mr Rodgers was subsequently dismissed for failing to attend work.

Having heard both sides of the story, the tribunal found that he had failed to raise specific concerns about the workplace – instead, his concerns related to the pandemic as a whole. Given that the company had implemented various safety measures to prevent transmission of the virus and the vast size of the building which made it easier to socially distance, Mr Rodgers’ lost his claim for automatic unfair dismissal.

What can organisations learn from these four cases?

All of these claims were brought on account of the employees arguing that there was a “serious and imminent risk” to their health to seek a finding of the dismissal being ‘automatically unfair.’ This claim is afforded to all employees from day one which means that, unlike unfair dismissal claims, they did not need to have 2 years’ continuous service to pursue the claim.

Before the pandemic, claims under this area of law were rare if not non-existent but various workplace issues have led to a resurgence of claims asserting this protection, especially amongst those who have less than 2 years’ service.

Under the legislation, a dismissal would be automatically unfair if the reason for it were that “in circumstances of danger which the employee reasonably believed to be serious and imminent, the employee took or proposed to take appropriate steps to protect themselves or others from the danger.”

While the furlough scheme is due to end this month, for employers, these findings can seem daunting when faced with increased requests to work remotely – but as you will see, each of the above cases turned on its individual’s facts. Notwithstanding the protection afforded to employees, the general position is that if a role is simply not suited to homeworking, as in Mr Accattatis’s case, that is not something that can be overcome. However, his outcome may have been different if he had raised specific concerns about the workplace to justify his refusal to attend.

If you are faced with a situation where an employee raises concerns about being in the workplace to justify their request to work from home, always make a conscious effort to understand their worries by entering into meaningful dialogue. More often than not, depending on the concerns, you may be able to alleviate the concern before it becomes a legal problem. If you are unable to ease their worries and maintain the view that the business needs override their concerns, you must be able to show that you have done everything that could have been done to protect the employees with your safety measures. Where there is a clear misalignment of views between you and the employee in question, it may well lead to the end of the employment relationship but you must always be able to show that you undertook meaningful consultation to defend a potential claim.

Case 5: Can we dismiss the one employee who is refusing to make contractual changes that would help the business?

A solicitor won her case of unfair dismissal after refusing to let her employer change of contract which meant her pay and working hours would be reduced to 80% whilst also giving them the right to put her on furlough at some point in the future.

When the proposed change was put forward to the employee, she refused on the premise that she was continuing to work through the pandemic and in the event that being a designated furloughed worker became necessary for her role in the future, she would agree to the change at that point.

She was urged to reconsider her decision by the HR Director but her refusal was maintained. An email was then forwarded by the HR Director to the Head of Department, stating that it was “not acceptable and, as per Directors’ notice, termination is the alternative”. Ms Khatun reiterated that she would be willing to agree if the changes were needed in the future but the employer confirmed that their proposal was non-negotiable.

Ms Khatun was dismissed with immediate effect on 26 March 2020.

The tribunal acknowledged that the employer did have “good business reasons” for putting the proposal forward in response to the pandemic, however, they did not believe that the employer had acted reasonably by terminating her employment – this meant that the dismissal was unfair.

The tribunal’s decision was largely based on the lack of meaningful consultation between the company and Ms Khatun. Any discussions that were held about these proposed changes have been one-sided and the employer had made it clear that they were unwilling to consider alternative options that were being put forward by her.

Key points to take away

Employers can certainly put forward proposed changes that are needed for the ongoing viability of the business but this must always be accompanied by solid business reasons and meaningful consultation with those who will be affected by the planned changes. Even if all of your workforce has agreed to the changes except for one individual, you must enter into dialogue with the employee to establish their reasons and make all reasonable efforts to reach an agreement.

Before dismissing any employee who is unwilling to agree to your change(s), employers are expected to consider all alternative options that would seek to preserve the employee’s employment. A dismissal should only be the last resort after all options have been thoroughly explored and exhausted – but even then, it is advised to tread with caution and seek legal advice on your business reasons before initiating a process to vary terms.

Case 6: Is it discriminatory to send a pregnant woman home to protect her health?

Not in this case.

The employee, Ms Prosser told her employer that she was pregnant on 13 March 2020. Therefore to protect her health, the employer sent her home by relying on government guidance which stated that pregnant women were clinically vulnerable.

Although she was a zero-hours worker with no guaranteed hours, the employer agreed to pay her in full while she was at home to ensure that she did not lose her income.

Following a risk assessment in mid-May 2020, the employer found that it was safe for her to return to an advisory role, once safety measures had been implemented. However, due to the nature of the work, the employer did not feel it was appropriate to assign her to nightshifts and/or responder work.

Unfortunately, her return to work was delayed because of issues with having the Perspex safety screens fitted in the office. The employee brought a grievance because she felt that she had been subjected to pregnancy discrimination. On 8 July 2020, it was agreed that she could now return to work.

When Ms Prosser found out that she was not eligible for paid birthday leave, she decided to bring a claim of discrimination against the employer.

To win her claim of direct discrimination, she would need to show that she had suffered ‘unfavourable treatment’ because of her protected characteristic which in this case was her pregnancy. However, the employer was able to show that she was not entitled to paid birthday leave because the benefit was not afforded to any of the zero-hours workers.

So at the hearing, the tribunal held that the vulnerability was the reason for her being sent home but this did not amount to “unfavourable treatment.” In their words, “it was the treatment which was appropriately informed through the requirements placed upon the respondent as a result of the Government’s public health advice and regulations leading from the onset of the first COVID-19 lockdown.”

What can organisations take from this case?

It does not by any means that it will be automatically safe to send a pregnant woman home from work. In this case, the fact that the employer continued to pay her was a significant factor because it meant that she did lose out financially. If she had not been paid, it would have been more likely to be “unfavourable treatment,” and she could have won.

It is implied that the outcome would have been different if the employer had decided not to continue paying her while she was told to stay at home. The employer had taken the appropriate steps to protect the health of its pregnant employee and the judgment states: “The one thing the Tribunal would say is that the respondent appeared to do all it could to keep her and her baby safe through the COVID-19 outbreak and paid her generously beyond the terms of her contract.”

Penalising employers for taking appropriate steps in line with government guidance is perhaps not the floodgate that the tribunal wants to open but it remains to be seen as to what would happen in a similar situation where the employee was left without pay.

Please note that all of these cases were ‘first-round findings’ at employment tribunals – this means that they may be appealed by the unsuccessful party and because of that, they have not (yet) set a legal standard for all to follow. In addition, the decisions will have been made using the COVID guidance that was relevant at the time the incidents took place. Therefore, a case with similar facts being brought at a later date may result in a different finding.

Nikita Shergill

Posted:

Nikita Shergill

Solicitor

Nikita is a Solicitor with the Employment team.