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CASE UPDATE: Employment tribunal decisions and COVID-19

14 Jun 2021

The employment team at Hay & Kilner are aware of the below COVID related employment tribunal decisions. Although employment tribunal decisions are not legally binding on other employment tribunals, they often give a helpful indication as to the decisions employment judges will make.

Case 1

Facts: The employee worked for a company which sells and distributes PPE. During March and April 2020, he repeatedly asked to work from home or be placed on furlough, explaining that he was uncomfortable using public transport and working in the office. He was told that his job could not be done from home, and that furlough was not possible because the business was so busy, but that he could instead take holiday or unpaid leave. He refused and was ultimately dismissed.

Decision: the employment tribunal found the employee was not automatically unfairly dismissed.

Key points: Although the employee reasonably believed he was in danger, the employer had acted reasonably in the circumstances and the employee himself wasn’t taking reasonable steps to remove himself from the danger. The employer reasonably concluded his job couldn’t be done from home and he did not qualify for furlough. The employee could have chosen to take unpaid leave or holidays but decided not to.

Contrast that case with case 2

Facts: the employee worked as a chef in a restaurant and was furloughed during the first lockdown. Before re-opening the restaurant, the employer asked the employee to come into work. The employee was concerned about catching COVID-19 at work and passing it onto his father, who was clinically vulnerable. This was particularly the case due to the employer failing to provide adequate  PPE and failing to put other COVID-secure workplace precautions in place. The employer’s response to the concerns raised was “shut up and get on with it“. With no prior discussion, the employer dismissed the employee by text message without notice. It appeared to rely on redundancy as the reason for dismissal.

Decision: the employment tribunal found the employee was automatically unfairly dismissed.

Key points: the employee had been unfairly selected for redundancy because he had raised health and safety concerns. Until the employee had raised those concerns, he had been a successful and valued member of staff. Contrast this decision with the above case, where the employer had taken reasonable steps to deal with the health and safety concerns raised.

Case 3

Facts: An employee refused to wear a face mask at the site of his employer’s customer. He was in the cab of his vehicle at all times and refused on that basis. The customer banned the employee from its site. The employee carried out the majority of his duties at this site. He was dismissed.

employment tribunal decisions related to Covid-19

Decision: an employment tribunal held that the dismissal was fair.

Key points: the employer had carried out a reasonable and fair disciplinary procedure and dismissal fell within the range of reasonable responses in the circumstances. The employer had been entitled to take account of the importance of maintaining good relationships with its customers, the continued insistence by the employee that he had done nothing wrong (which caused concern as to his future conduct) and the practical difficulties arising from him being banned from the customer’s site. Of note is that the employer’s handbook required courteous treatment of clients and that employees take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work.

Case 4

Facts: the employee was asked to agree a variation to her employment contract at the start of the first lockdown which could give her employer the right to reduce her pay by 20%. She refused as several colleagues had been furloughed and were receiving 80 % of their pay and she was being asked to cover their work. She was dismissed without notice.

Decision: the employment tribunal held the employee had been unfairly dismissed.

Key points: the tribunal agreed that the employer had “sound, good business reasons” for implementing the contractual variation. It had been reasonable and not premature for the employer to want to implement the measures that it did, at the time that it did, given the effects of the pandemic on business. Therefore, there could have been a fair dismissal on the ground of “some other substantial reason”. However, the dismissal was unfair as no meaningful consultation was carried out, the employer didn’t explore alternatives to dismissal and a right of appeal also wasn’t offered.

If you require help or any advice in relation to these matters, or any other employment issues, then please do not hesitate to get in touch with the team anytime with any questions.

You can also see all of our Covid updates here.