Health and safety concerns during the Coronavirus Pandemic – when is an employee unfairly dismissed?

Louise Walker
Legal Director
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The Employment Appeal Tribunal has, in a recent decision, looked at circumstances in which employees may be fairly dismissed following expression of concerns about returning to the workplace in light of Covid-19.

The law

In summary, the legal position is that an employee is protected from dismissal if they reasonably believed that returning to the workplace involved circumstances of danger which they reasonably believed to be serious and imminent.

The background

In March 2020, the employee displayed symptoms of Covid-19, and was sent home and told to self-isolate. The employee then emailed his employer to say that he had no alternative but to stay off work due to having a child who was high risk as a result of an underlying medical condition, and a 7-month-old baby. The employee never returned to work and was subsequently dismissed.

The employee argued, at the Employment Tribunal, that he had not returned to his place of work because he reasonably believed that there were circumstances of danger that were serious and imminent arising out of the Coronavirus pandemic.  He argued that, in those circumstances, his dismissal by his employer was  automatically unfair on health and safety grounds.

The decision at the Employment Tribunal

The Tribunal decided that the employee’s dismissal was not automatically unfair in the particular circumstance of the case.  It found the following factors to be particularly important:

• The employee’s workplace was large and few people worked in it;
• The employee could generally maintain social distance at work;
• The employer discussed measures to protect against Covid-19 with staff;
• The employee had not asked for a mask, despite these being available;
• The employee drove his friend to the hospital when he was supposed to be self-isolating; and
• The employee worked in a pub during lockdown.

The Tribunal accepted, on the evidence given at the hearing, that the employee had had significant concerns about the Covid-19 pandemic, but found this hard to reconcile with the fact that the employee had chosen to drive his friend to the hospital whilst he was meant to be self-isolating.  Having heard the evidence in that case, the Tribunal did not consider that the employee believed that there were circumstances of serious and imminent danger within the workplace, but, rather, he considered there were circumstances of serious and imminent danger all around.

The employee appealed to the Employment Appeal Tribunal (EAT).  The employee argued that the Tribunal had erred in law by concluding that “because the claimant’s belief was one of a serious and imminent danger at large, his belief that his workplace presented a serious and imminent danger was not objectively reasonable”.

The EAT accepted that the employee had genuine concerns about the Coronavirus pandemic, and particularly about the safety of his children, but the EAT did not consider that this meant that the employee necessarily had a genuine belief that there were serious and imminent circumstances of danger, either at work or elsewhere, that prevented him from returning to work (such that would have afforded him protection against dismissal).

Ultimately, the appeal was dismissed and this claim failed on its particular facts.

Take away from this case?

Whilst this case is perhaps indicative of how the Employment Tribunal and the EAT may approach cases involving employees refusing to attend the workplace on grounds of health and safety fears, it should be borne in mind that the decision here was very much based on the facts of this case.

That said, a degree of comfort may be taken from the Employment Tribunal’s examination of the facts, which illustrate that any steps taken by an employer to protect its workforce, and to communicate such arrangements to staff, will likely assist in defending Employment Tribunal claims.

Nevertheless, it is easy to imagine circumstances where COVID measures are less stringent in other workplaces and a refusal to return to such a workplace might enjoy greater protection under automatically unfair dismissal principles.

The full judgement can be read here.

If you have any questions regarding this update, or if you require support or advice on any other employment law matters, please do not hesitate to contact Just Employment Law on 0141 331 5150 or enquiries@justemploymentlaw.co.uk.

Topics: Coronavirus, EAT, Employment Appeal Tribunal, Health And Safety