Employment tribunals in England are now starting to hear more cases relating to COVID-19. A number of these cases focus on the protection under the Employment Rights Act 1996 for employees who are dismissed in circumstances of danger which they reasonably believe is serious and imminent. Employees in these circumstances have the right to claim automatic unfair dismissal if they are dismissed because they:
- Leave (or propose to leave) or refuse to return to the workplace
- Take appropriate steps (or propose to take steps) to protect themselves or others from the danger
- Communicate these circumstances (by any appropriate means) to their employer
There was much chat amongst employment lawyers in the early days of the pandemic about whether this previously little-known protection would become highly pertinent for employers and employees as a result of COVID-19. We are now getting some clues about how it applies to pandemic related dismissals that took place early in 2020.
In this article we are going to look at three recent cases focusing on serious and imminent danger dismissals (under section 100 (1)(e) of the Employment Rights Act).
Proposals were not appropriate steps
The first case is Accattatis v Fortuna Group (London). Briefly, the facts of this case are as follows: Mr Accattatis was employed by Fortuna Group, who sells PPE. In February 2020, the government declared that COVID-19 constituted a “serious and imminent threat to public health”. In March 2020, the first national lockdown started and employees where advised only to travel to work where absolutely necessary.
The employer told all employees that they could stay at home, but this would be on the basis of unpaid leave or holiday. Mr Accattatis asked to work from home on full pay, but was told that his role meant he could not do so. He then asked repeatedly to be placed on furlough. He said he was uncomfortable using public transport. His employer refused as they said he did not qualify for furlough. He was dismissed following a period that his employer said was unauthorised absence. Mr Accattatis did not have two years’ service, so could not bring a normal unfair dismissal claim. However, there is no qualifying service requirement for automatic unfair dismissal claims under section 100(1)(e).
The tribunal found in favour of the employer. The government announcement together with the emails from Mr Accattatis showed that there were circumstances of danger that he reasonably believed to be serious and imminent. However, the tribunal found that the employer had justifiably concluded that Mr Accattatis could not work from home and did not qualify for the furlough scheme. Therefore, Mr Accattatis’s proposals to work from home on full pay or be furloughed on 80% of pay were not "appropriate steps" to protect himself from the danger. His claim therefore failed. In any event, the tribunal found that the reason for the dismissal was not that the employee proposed to take these steps.
Although this is only a tribunal decision and therefore not binding on other tribunals, it is a reminder that COVID-19 by itself may not be enough to entitle employees to refuse to attend work and rely on section 100(1)(e) to protect them. This will particularly be the case where the employer has tried to accommodate the employee’s concerns. In this case, the employer had offered unpaid leave or holiday.
Steps to protect someone else is covered
The second case is Gibson v Lothian Leisure. Mr Gibson worked as a chef in a restaurant owned by Lothian Leisure. The restaurant closed during the first lockdown and Mr Gibson was put on furlough. His father has a number of medical issues that meant he was shielding during this time. In the run up to the end of the first lockdown, the restaurant asked Mr Gibson to start coming into work. Mr Gibson told them that he was worried about his father catching COVID-19 from him on his return to work. He raised concerns that the restaurant had no PPE and had no intention of creating a COVID-19 secure working environment. The response from his employer was robustly negative. He was told to “shut up and get on with it”. The employer then dismissed Mr Gibson by text message.
Again in this case, the employee did not have sufficient length of service to bring a normal unfair dismissal claim. He brought a claim under section 100(1)(e) which was upheld by the tribunal. There were circumstances of danger (the growing prevalence of COVID-19) that Mr Gibson reasonably believed were serious and imminent. Raising the issues about PPE and other workplace precautions was enough to amount to “appropriate steps” to protect his father.
Again this is not a binding decision, but it indicates that where an employer has made no effort to accommodate an employee’s concerns about returning to work and has not attempted to make the workplace COVID-secure, the chance of an employee succeeding on an automatic unfair dismissal claim of this type is much higher.
Communication of danger is enough
The final case is Montanaro v Lansafe Ltd. This case centres around the dismissal of an employee (Mr Montanaro) who was in Italy for his sister’s wedding on 9 March 2020 when Italy went into a countrywide lockdown. Mr Montanaro travelled to the airport to return home to the UK on 10 March 2020, but did not get the flight. He notified his employer of government guidance which at the time meant he would have to self-isolate for 14 days on returning from Italy. He asked for advice and guidance as to what to do. He asked for confirmation that he was travelling for work, which he thought was required in Italy. He was asked to wait for confirmation that he could work remotely. He did so and carried on working in Italy. He was subsequently dismissed by his employer for an alleged failure to get authorisation for his holiday.
Mr Montanaro brought a successful claim under section 100(1)(e). The tribunal found that there were circumstances of danger (reference the government serious and imminent threat declaration on 10 February 2020). Although the tribunal said that Mr Montanaro did not say a great deal about his concerns over the danger, he had said enough to show that he did consider it to be a serious and imminent danger. This was found to be reasonable. His actions as set out above were found to be "appropriate steps" and also to be communicating the danger to his employer. The evidence given by the employer as to the reason for dismissal was not credible. He had been dismissed because he had communicated the difficulties posed by the pandemic and proposed to work remotely until circumstances changed.
This case shows a number of things. Firstly it demonstrates that the “circumstances of danger” do not need to relate to the workplace itself. Mr Montanaro made a general comment about the danger of COVID-19 and this was sufficient. It also shows that the ‘appropriate steps to protect himself or others’ can be interpreted very widely to cover communications and taking an obvious course of action such as to carry on working remotely when no instruction from the employer was forthcoming. It yet again shows how useful this protection is to those with very short service. Mr Montanaro had less than three months’ service. Finally, it reminds us that even the mere communication to an employer of danger can be sufficient to trigger this protection.
As with the other two cases, this is a first instance decision, so could be appealed, and is not binding on other tribunals.
Comment
We are likely to see an increase in the number of claims based on “serious and imminent danger” Whilst it was easy to see how COVID-19 was certainly a serious and imminent danger at many points in the last 15 months, this won’t necessarily continue to be the case as the number of vaccinated people increases and the risk of catching COVID-19, or being seriously unwell from it decreases.
Frances Rollin