In this bulletin we look at three recent Employment Tribunal decisions relating to health and safety dismissals in the context of Covid-19. These all concern claims under s100(1) of the Employment Rights Act 1996 which protects staff from dismissal (or detriment) if they do not return to the workplace because they reasonably believe they will be in (unavoidable) serious and imminent danger.
This topic is likely to be relevant to clients who are considering encouraging employees to return to the office more regularly following the recent lifting of Covid-19 restrictions.
In Accattatis v Fortuna Group and Rodgers v Laser Cutting the employees failed in their claims for automatic unfair dismissal. This was because their refusal to return to the workplace was not an appropriate step to protect them from danger. However, in Gibson v Lothian Leisure the employee succeeded in his claim. In that case, the employee’s refusal to return was appropriate given his valid health and safety concerns and the employer’s mishandling of them.
Although these Tribunal decisions are not binding on other courts, they do help illustrate how the issue of health and safety dismissals relating to the Covid-19 pandemic are likely to be dealt with.
What does the law say?
Section 100(1) of the Employment Rights Act 1996 provides protection from dismissal or detrimental treatment including when:
- leaving or refusing to return to the workplace in circumstances of danger which the employee reasonably believes to be serious and imminent and which they could not reasonably have been expected to avert; or
- taking appropriate steps to protect themselves or others in circumstances of danger which the employee reasonably believed to be serious and imminent.
According to the Employment Appeal Tribunal in Oudahar v Esporta Group, whether the employee has taken appropriate steps involves a two stage test:
- Was there a danger which the employee reasonably believed was serious and imminent?
- Did the employee take appropriate steps to protect himself or others from the danger; or communicate the concerns about the danger to his employer in an appropriate way?
If both parts of the test are met, the Tribunal must decide whether such steps were the reason for dismissal. If so, the dismissal is unfair.
Claims under s100 are for ‘automatic’ unfair dismissal. Unlike ordinary unfair dismissal claims, employees do not need two years’ continuous service. It can therefore be a powerful tool for employees.
Accattatis v Fortuna Group (London) Ltd
Mr Accattatis, was employed by Fortuna Group which sells and distributes Personal Protective Equipment (PPE). The company remained open throughout the first lockdown and introduced measures to protect its staff. In March 2020 Mr Accattatis developed Covid-19 symptoms and self-isolated. Shortly before he was due to return to work he asked to be furloughed. Fortuna Group refused as demand for PPE was very high and it needed him to return to work. Mr Accattatis asked to work from home to avoid public transport and the office. Fortuna Group refused his request as he could not carry out his role at home. He was told instead that he could take holiday or unpaid leave. Mr Accattatis then pressed to be furloughed on the grounds he was self-isolating.
Mr Accattatis was dismissed (shortly before gaining two years’ service) for failure to support the company and comply with its policies and guidelines. He brought a claim for automatic unfair dismissal.
Rodgers v Leeds Laser Cutting
Mr Rodgers was employed by Leeds Laser Cutting Ltd in a large warehouse-type space with a small number of other employees. During lockdown, additional safety measures were introduced at the warehouse, including staggered start and finish times, social distancing and masks.
Mr Rodgers was concerned about infecting his clinically vulnerable child and contacted his manager to say he would not return to work until the lockdown eased. However, he did not explain his concerns or engage with his employer about this. Mr Rodgers was dismissed a month later and brought a claim for automatic unfair dismissal.
Gibson v Lothian Leisure
Mr Gibson was employed as a chef by Lothian Leisure. He was furloughed at the start of the first lockdown but was asked to return to work before the planned reopening of the restaurant. Mr Gibson was concerned about contracting Covid-19 and passing it on to his clinically-vulnerable father. He alleged that Lothian Leisure did not provide PPE or provide a ‘Covid-secure’ working environment. When he raised concerns with his employer, he was told to “shut up and get on with it”. He was dismissed with immediate effect by a text message from one of the directors and was not paid any notice or holiday pay. Mr Gibson brought a claim for automatic unfair dismissal.
Employment Tribunal decisions
In the first and second cases, the Tribunal dismissed the employees’ claims. Their refusal to return to the workplace and demands for furlough, to work from home or stay at home indefinitely, were not considered appropriate steps to protect them from danger.
However, the Tribunal came to different decisions about the first part of the test in Oudahar. In Accattatis, the Tribunal accepted that the employee had a reasonable belief in the risk of serious and imminent danger in the workplace due to Covid-19. In the context of the start of the first lockdown and the Government’s announcements at that time, the employee’s statement that he did not feel comfortable with the idea of using public transport or coming to the office was credible.
In contrast, the Tribunal in Rodgers found that the employee did not believe there was a serious and imminent danger in the workplace; rather he believed it was everywhere. In particular, the employee had said he would return to work when the lockdown eased, not when the workplace had been made safe. Further, the size of the workplace meant that social distancing was not an issue and if the employee had felt there was a particular task which put him in danger, he could have refused this.
In the third case, the Tribunal upheld the employee’s claim. It accepted that the employee had a reasonable belief in the serious and imminent risk of harm to his father, leading him to raise concerns about the lack of PPE. Prior to raising these concerns, he was a successful and valued member of staff and had recently been promoted.
These decisions are timely given the recent removal of the instruction to work from home. The return to the office will likely cause concern for many staff, particularly in light of the predictions of a surge in Covid-19 cases. Although not binding on other Tribunals, the decisions do help illustrate the approach that will likely be taken when dealing with Covid-19 health and safety dismissals.
The good news for employers is that the decision in Rodgers suggests that a workplace is not automatically unsafe just because of the existence of Covid-19. For an employee to have a reasonable belief that they are at risk of serious and imminent danger, they must have specific concerns.
Even if the employee’s belief in their risk of danger is reasonable (as in Accattatis and Gibson) the steps they take in response must be appropriate. Making an unreasonable demand, such as to work from home where the role does not suit this, is unlikely to be appropriate. Rather, employees will be expected to work with their employer to identify and reduce such risk.
Where an employee does take appropriate steps, employers will need to address their concerns and minimise the danger. We recommend employers:
- continue to follow the Government’s guidance in relation to safety measures at work - available here;
- clearly communicate health and safety rules;
- have a clear process for staff to raise concerns about workplace safety; and
- consider making adjustments to ease the transition (such as a gradual increase in office based days as recommended by the Government).
Perhaps predictably, we do not recommend telling the employee to “shut up and get on with it” before dismissing as was the case in Gibson. Employers are unlikely to receive much sympathy from a Tribunal!
If you would like any assistance with how to deal with employees who refuse to return to the workplace, or you have any other questions on this topic, please contact us.