Can businesses dismiss workers who refuse to return to the office?

In light of recent case law, Maria Hoeritzauer explains whether employers can dismiss staff who are reluctant to go back to the workplace because of Covid fears

As government guidance changes and the country is no longer urged to work from home if they can, many employers will be looking to their employees to return to the office and many employees will be reluctant. Employers are weighing up the risk of dismissing those who refuse.

The landscape now is quite different to that in March 2020 when we had no vaccinations, compulsory mask wearing and social distancing and an obligation on employers to make changes to their workplace to make them Covid safe. Despite the relaxation of restrictions, employers still have an obligation to provide a safe pace of work but provided employees have been vaccinated, then their level of risk is significantly reduced.

Can an employee be dismissed for failing to observe Covid safety measures?

Yes they can. In Deimantas Kubilius v Kent Foods Ltd,  a client insisted that masks were worn by lorry drivers even in their cab and when Mr Kubilius refused, it was found he had been fairly dismissed.

Can employees who are refusing to return to work be fairly dismissed?

Under ss 44 and 100 of the Employment Rights Act 1996 (ERA 1996), employees are protected from being subjected to a detriment or being dismissed for exercising their right to leave their workplace. To gain such protection, employees must have a ‘reasonable belief’ that their workplace poses a serious or imminent threat to them or to others which they could not reasonably have been expected to avert, and they left and refused to return to work while the danger persisted. This will be much harder now with vaccinations and a reduced prevalence of the virus but cases arising during the height of the pandemic are:

In Gibson v Lothian Leisure Mr Gibson was worried about catching Covid-19 and passing it on to his father who was clinically vulnerable. When he raised concerns about the lack of PPE and a non-Covid secure working environment, his employer summarily dismissed him via text message, with no notice or accrued holiday pay. He succeeded in his claim for automatic unfair dismissal as this was at the height of the pandemic and the tribunal accepted that he was at serious and imminent risk.  

But in Rodgers v Leeds Laser Cutting an employee told his manager that he wouldn’t return to work until after lockdown because he feared he would infect his clinically vulnerable children with Covid-19. The tribunal found the employee did not have a reasonable belief in serious and imminent workplace danger on the facts. The employer had implemented the precautions recommended by government advice at the relevant time and the employee had not raised any concerns about the workplace measures nor taken any steps to avert danger before absenting himself.

In Accattatis v Fortuna Group the tribunal accepted that Mr Accattatis, a key worker in the PPE industry, had a reasonable belief he was in serious and imminent danger, but his claim for automatic unfair dismissal failed because he had not taken any steps to protect himself from the danger and his requests for furlough (he was a key worker) and demands to work from home (which he could not do) were not reasonable steps. His employer offered for him to take holiday or unpaid leave.

In Preen v Coolink Ltd an employee was dismissed for questioning whether he should be coming into the workplace for non-emergency work, just as the prime minister announced that everyone should work from home if they could, and was found to have been unfairly dismissed for having raised health and safety issues.

What are the other main risks of dismissing an employee for failing to return?

Discrimination claims

In X v Y an employee claimed that her concern about catching Covid amounted to a philosophical belief – the tribunal dismissed this and said that her fear did not amount to a belief but instead was ‘a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat’.

Whistleblowing

In Best v Embark on Raw Ltd an employee who was dismissed for complaining to management that Covid-safe policies were not being implemented by staff in practice, was automatically unfair as a result of whistleblowing.

Despite popular belief, Covid hasn’t created a new potentially fair reason for dismissal. Rather, employees have, and continue to have, the right to not be unfairly dismissed or subjected to a detriment because they have raised a health and safety concern, Covid related or not. However, we are seeing increasing numbers of claims which relate to health and safety concerns, and may continue to do so. 

Maria Hoeritzauer is a partner at Crossland Employment Solicitors