How Covid has affected automatic unfair dismissal claims in health and safety cases

In light of recent case law, David Sillitoe looks at the varying success of claims relating to concerns about attending the workplace

Section 100 of the Employment Rights Act 1996 provides employees with protection from dismissal in health and safety cases, including where ‘in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert he…left…or refused to return [to work].’

Employees can bring such claims even where they don’t have two years’ service. A small number of such claims have now been heard. No doubt many others have settled. 

In Rodgers v Leeds Laser Cutting, a tribunal found that the dismissal of an employee who said he would not return to work until after lockdown, because he feared he would infect his children with Covid was not automatically unfair. 

Mr Rodgers was unable to establish a reasonable belief in serious and imminent workplace danger. The tribunal was influenced by his actions, including breaching self-isolation guidance the day after leaving work, and the employer’s actions in implementing government-recommended precautions (hand-washing and social-distancing). 

The claimant in Accattatis v Fortuna Group (London) had expressed concerns about commuting and working in the office during lockdown and had repeatedly asked to be furloughed. The tribunal found that he reasonably believed there were circumstances of serious and imminent danger; however, his response was not only that he wanted to stay at home (which was agreed), but also that he be allowed to work from home (on full pay in circumstances where the employer had said that was not viable) or be furloughed (on 80 per cent pay). His claim failed on the basis that these were not appropriate steps to protect himself from danger.

However, in Gibson v Lothian Leisure, the claimant was found to have been automatically unfairly dismissed. He had raised concerns about lack of PPE or other workplace measures, out of concern for his clinically vulnerable father. When he did so, he was told to ‘shut up and get on with it’ and then summarily dismissed by text message.

The above are all first-instance decisions, so are not binding on future tribunals. However, some general principles emerge for assessing risk:

  • How reasonable was the conduct of the employee? Were their concerns valid and did they take steps to discuss their concerns with management before absenting themselves from the workplace?

  • What relevant safety measures had the employer implemented and were they in accordance with government guidance?

  • How well had the employer communicated the precautions they had taken?

  • Did the employee’s concerns arise from the workplace itself or the broader environment, such as public transport.

  • To what extent did the employer take the employee’s concerns seriously and carefully consider any representations made by them? 

  • What was the employer’s fundamental reason for dismissal? To succeed, the health and safety reason must be the sole (or, if more than one, the principal) reason for dismissal.

These cases arise from events at the start of the pandemic. Now we know more about the virus and with the impact of the vaccine, future cases may well have to grapple with very different circumstances, albeit it applying the same legal tests.

Although an investigation may not need to be as thorough as when ordinary unfair dismissal principles apply, if an employer can show it has carefully considered the circumstances and explained its reasoning to the employee, it will likely be in a better position to defend a claim. It will also probably be less likely to face such a claim in the first place.

David Sillitoe is a partner at Robinson Ralph LLP