One of the challenges for HR professionals over the last year has been anticipating how the inevitable stream of Covid-19 claims would be responded to by tribunal judges and panels, and how the legislation and case law we work with will be interpreted in the context of a global pandemic, and the extraordinary and unusual set of circumstances we’ve been working in for the past 12 months.
Claims in respect of a detriment for raising health and safety concerns were always going to be a key area and how the protections employees have around health and safety would be interpreted in relation to coronavirus was something we were eagerly anticipating.
We now have a case where an employee claimed unfair dismissal under Section 100 of the Employment Rights Act, which provides useful learning and guidance for employers. Caution should be exercised because the facts are fairly specific, and other judges in other cases may well go a different way. In addition, because this is only an initial tribunal rather than an Employment Appeal Tribunal, a precedent has not been set at this time.
Here’s a brief guide to the case and how it is relevant for employers.
What were the circumstances of the case?
The employee in question was working in a very large warehouse-type environment, with four other employees. At the time of the first lockdown in March 2020, the employer announced that they would remain open and asked employees to continue coming to work. Covid-safe measures were put in place in terms of reminding employees to socially distance, handwashing, additional cleaning and similar. Advice was taken from an external professional about these measures.
The claimant left work as normal on 27 March 2020 and then texted his employer on 29 March saying he would not be returning. He made no further contact and a few weeks later he was dismissed. He then brought a claim of automatic unfair dismissal under Section 100 of the Employment Rights Act.
What is Section 100?
Section 100 of the Employment Rights Act 1996 says that if an employer dismisses someone for one of a number of reasons relating to health and safety, it will be automatically an unfair dismissal. Unlike ordinary unfair dismissal claims, there is no requirement to have two years’ service to bring this claim. Section 44 offers similar protection but for detriments rather than dismissals.
Which specific elements were relevant?
Two specific sections of Section 100 were relevant to this claim. The first one was a claim that “in circumstances of danger the employee reasonably believed to be serious and imminent”, he left work or did not return to work. The second element was that in those same circumstances, he took “reasonable steps to protect himself or other persons.”
Did he reasonably believe there were circumstances of serious and imminent danger?
After exploring the facts and the evidence, the judge felt that although the claimant did believe Covid-19 represented serious and imminent danger, he did not specifically believe that there was serious and imminent danger in the workplace. The claimant acknowledged that it was not hard to socially distance in the workplace environment, and that he had been given advice about remaining safe.
He had also not referred to specific issues in the workplace when he informed his boss he was not returning, and had not either raised concerns or stated that if these were addressed, he would return. His concern about serious and imminent danger was a wider one rather than specific to the workplace.
Did he take reasonable steps to protect himself or others?
The judge felt that the action of refusing to return to work was not an appropriate step to take, particularly where he had not raised concerns or made any effort to explore other options available.
What can we learn?
Key points to take away from this case are as follows:
- Covid-19 is certainly capable of being circumstances of serious and imminent danger under Section 100 (and therefore presumably Section 44 as well). Therefore if someone raises health and safety concerns, these protections should absolutely be considered relevant.
- The judge felt in order for this protection to kick in, the concerns an employee has must be specific to the workplace and not wider societal concerns.
- The fact the workplace in question was objectively very safe was extremely relevant to why this claim failed, therefore employers should not assume they will be ok to dismiss (or impose any other detriment) if someone refuses to work because of Covid-19 concerns.
- Similarly, the fact this employee had not raised specific concerns or stated clearly that his failure to work was about workplace safety concerns was relevant to why his claim failed. If a similar employee in a similar situation was more specific, the outcome may have been different.
What should you do if someone raises concerns?
If you have an employee who is reluctant to return to the workplace citing concerns around Covid-19 safety, you should take a number of steps:
- Explore with them exactly what the nature of their concerns are. Make them be specific. This will enable you to address them and/or explain measures you have taken to address them.
- Make sure you have evidence of risk assessments, of covid-safe measures, and that these have been clearly communicated and are being enforced.
- Try to understand someone’s personal reasons for being concerned, whether it is general anxiety, worry about a vulnerable family member or a health condition they have, demonstrating that you have explored thoroughly will help you.
- Consider alternatives. Even if you think the concerns are not justified, if there are alternatives to dismissing or disciplining for refusal to work, these should be explored. Could they work from home? Could they come in at different times to avoid busy public transport? Could their tasks be adjusted? Consider all of these and document it, including why the steps cannot be taken if that is the case. If you can’t change anything, consider agreeing a period of unpaid leave rather than taking punitive action.
Ultimately this is a very early case and there will undoubtedly be more, which may well go a different way. But understanding how these issues are being viewed by the judiciary so far is useful guidance in terms of how we adapt to coronavirus in the workplace and how we bring employees back to work safely and with minimum legal risk.
If you need any further advice on unfair dismissal claims relating to Covid-19, do get in touch.