Covid cases continue to come before the employment tribunal; many involve allegations that employees have been dismissed for making protected disclosures and/or raising concerns about health and safety and are highly fact-specific.
For claims to succeed under s 100 of the Employment Rights Act (ERA), an employee who is not a safety representative must demonstrate that in circumstances of danger which they believe to be serious and imminent and either: (i) which they cannot be reasonably be expected to avert, they left or refused to return to their place of work; or (ii) they took appropriate steps to protect themselves.
In Regnante v Essex Care, the claimant’s husband had successfully undergone treatment for cancer but was classified as being “clinically extremely vulnerable”, the consequences of catching Covid for him were potentially dire. Initially, in March 2020, Mrs Regnante was allowed to work from home, but her managers wanted her to work from the office to be fair to other employees. She completed a risk assessment questionnaire and was encouraged to amend some of her answers by her manager, which would enable her to work in the office and there were also discussions about taking 12 weeks’ unpaid leave and staying in a hotel when working in the office.
The tribunal reviewed the advice issued at the time which was to work from home unless absolutely necessary and noted that the majority of her tasks could be carried out from home. The tribunal was satisfied that despite the measures taken by the employer there were circumstances of danger, given the risk to Regnante’s husband if he were to catch Covid were serious. It upheld her claim that she had been constructively dismissed and found the following breaches of the implied term of trust and confidence:
Requiring her to attend work or take unpaid leave when she had valid concerns about the precautions taken to prevent the spread of Covid when her husband was shielding.
Improperly seeking to require her to change her responses so that she would be required to return to work.
In Hetherington v Easyfit Blinds, one of the issues was whether the employee had been dismissed for raising safety concerns. The claimant’s job was to visit customers’ homes and provide quotations. The employer provided PPE to its workers. He was asked to visit a block of flats which was a known ‘hotspot’ for Covid, and he refused to attend. The claimant alleged that he was dismissed for this reason as opposed to a customer complaint in relation to his conduct. In dismissing his claim, the tribunal considered the circumstances in which s 100 ERA applies.
The tribunal noted that the employer was fully compliant with the government’s Covid guidelines and had taken steps to ensure a Covid-compliant workplace both on and off site, as a result there were no circumstances of danger that the claimant reasonably believed to be serious and imminent. In addition, refusing to attend the site did not constitute “appropriate steps” to protect himself from danger when he could have requested additional PPE.
In McNabb v Denholm UK Logistics Limited, the issue was whether the claimant had been unfairly dismissed when, having taken a holiday in Dubai, he returned to work following a negative Covid test when government guidance required that he should self-isolate for 14 days upon return. Despite arguing that he had learning difficulties and had misread the guidance, the Liverpool employment tribunal upheld his dismissal for gross misconduct on the basis that he had breached his employer’s policies and was in breach of the implied duty of co-operation to obey lawful and reasonable orders. It characterised his failure, given his learning difficulties, to check the government guidance from an independent source as an act of negligence and noted that his actions could have led to serious illness and loss of life.
In Pareek v Delta ltd/a Mira Boiler, the main issue related to the treatment the employee received after raising concerns about health and safety and a lack of a health and safety policy when a colleague attended work displaying Covid-like symptoms. At that point he had worked from home. The employee was dismissed, and a tribunal upheld his claim that he had suffered detriments and been dismissed for raising health and safety concerns. It found that prior to raising the concerns he had had a good relationship with his employers but that this changed after the health and safety concerns were raised
Barry Stanton is a partner and head of employment at Boyes Turner