Employment Tribunal decision on cases involving COVID-19 are now being reported and they make sobering reading for employers.
In the case of Montanaro v Landsafe Limited, the Claimant travelled to Italy for his sisters’ wedding on 9 March 2020 believing that he had permission from his employer to take holiday. Italy went into lockdown the same day and the Claimant was prevented from travelling home. He informed his employer who asked him to fly back to London. The Claimant then forwarded information to the employer about the situation in Italy and why he believed he could not fly back to London in light of the lockdown in Italy.
His employment was terminated by the employer advising that he was dismissed for failing to follow company procedures and taking unauthorised leave. He did not have the necessary two years’ service to claim unfair dismissal but relied on s 100 (e) Employment Rights Act 1996 which states that it is automatically unfair dismissal (with no need for qualifying service to bring the claim) if the reason for dismissal was 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.”
The tribunal held that there were “circumstances of danger” given the outbreak of the pandemic and the risk of catching a contagious virus which could lead to serious illness or death and that the Claimant reasonably believe the danger was serious and imminent. The Claimant had taken appropriate steps to protect himself in that he had informed his employer of the difficulties posed by the pandemic and that he had proposed to work remotely from Italy until the circumstances had changed and this had formed the basis of the dismissal and accordingly the requirements of s100 (e) were made out and the Claimant had been unfairly dismissed.
Conversely, In the case of Accattatis v Fortuna Group (London) Limited, an employee had raised concerns with his employer that he felt uncomfortable commuting and refused to attend work. Instead, he asked to be furloughed. The employer’s view that the work could only practically be done from the workplace and it was not feasible to work from home. The employer therefore informed the employee of this fact and ultimately employment was terminated following the employee’s refusal to attend work.
Again, the employee did not have the necessary two years, service to make a claim of unfair dismissal so attempted to rely on s 100 (e) Employment Rights Act to challenge the dismissal.
The tribunal accepted that the first part of the requirement was made out in that the employee had a reasonable belief that there were circumstances of serious and imminent danger given the outbreak of the pandemic and the government announcements that COVID-19 posed a serious and imminent threat to public health. However, the employee in this case had not taken reasonable steps to protect himself from danger. In fact, the employer had reasonably concluded that the job could not be done at home and the employee's demands that he be placed on furlough did not constitute appropriate steps taken by the employee to protect himself from danger. Therefore, the employee’s claim failed.
So where does this leave employers?
These cases are amongst the first that have been reported following the outbreak of the pandemic and the imposition of the general requirement to work from home. Safe working and whether an employer can require an employee to work from an office or a workplace when the job cannot reasonably be performed from home has been a controversial topic. Many employers have taken a cautious approach and have allowed home working even if the circumstances are not ideal but in other cases disputes have arisen.
These cases are only first instance Tribunal decision so do not set any binding legal precedent. However, they do give an indication as to how Tribunals might approach things.
It is important to remember that these cases involve a consideration of a part of the Employment Rights Act that has not often been applied in the past. Most cases of unfair dismissal are brought by employees who have more than two years’ service and therefore the Tribunal would consider the usual test of whether there was a fair reason for dismissal and whether the employer had acted reasonably in dismissing for that reason. Therefore the employee would not need to rely on the “narrow” requirements of s100 (e ) and could rely simply on the normal principles of unfair dismissal.
However, what these cases highlight is the willingness of Tribunals to take almost as read that the pandemic and the threat to health amount to “circumstances of danger” for the purpose of the legal provision which then potentially opens up the door to an unfair dismissal claim even in respect of those employees who lack the necessary two years’ service to bring claims.
Few people would argue with the principle that employees who take reasonable steps to protect themselves in circumstances of danger should have protection from being dismissed for such reasons. However, opinion will inevitably be divided on the extent to which these provisions should apply where there is a genuine difference of opinion on where the employee needs to work. Dismissals which arise out of these situations run the risk of being found unfair should the employee bring a claim to an Employment Tribunal.
If you need advice about any employment disputes please contact Lee Jefcott, or your usual Brabners employment contact.
