Contract manager who requested home working to shield vulnerable son unfairly dismissed in 'sham redundancy', tribunal rules

Judge says employer would ‘not tolerate’ employee working from home full time even if only for a short period

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A contract manager who requested to work from home to shield his sick son from coronavirus was unfairly dismissed, a tribunal has ruled.

The Watford Tribunal found that Mr M Strydom asked his managing director, Mr Halsey, permission to work from home for six weeks, until he was able to be vaccinated. But the tribunal found Halsey had an “entrenched, but mistaken” belief that Strydom wanted to work from home “indefinitely”, which was the main reason for his dismissal and prompted a “sham” redundancy.

The tribunal determined that the employer – Bridge Facilities Engineers (BFE) – “had not established a fair reason for dismissal”, because it was unable to give any specific justifications for why Strydom could not carry out his duties from home, “which he had already been doing once a week for more than three years in any case”. 


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The tribunal also found that Strydom was given no warning of his dismissal and that BFE did not follow its own company handbook in terms of how it should approach the redundancy situation. Additionally, it “did not turn its mind to any pool of selection or any fair selection criteria”.

Background

Strydom was employed as a contract manager at BFE – which provided maintenance, breakdown services and the installation of air con and refrigeration equipment – from 11 December 2017 until his dismissal on 18 February 2021.

While his primary place of work was the office, Strydom also carried out customer site visits, which made up “roughly” 10 per cent of his work day, he told the tribunal.


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He also said that his employment offer included a provision allowing him to work from home every Tuesday to care for his son, who has severe learning difficulties. It also noted that cold and flu symptoms can cause his son to have seizures, and this had previously resulted in a coma.

On 21 March 2020, the NHS deemed Strydom’s son to be extremely clinically vulnerable to Covid, and asked that he remain at home for 12 weeks with limited face-to-face contact, aside from healthcare professionals.

After the first national lockdown on 23 March, Halsey agreed that Strydom could work from home, but the tribunal heard that BFE took a “different stance” with other employees.

On 24 March, the company secretary, Ms Knights, stood down all engineers via email, but did not include Strydom. When he told Knights he had not received the email, she said: “Whoops! ! Nearly forgot you Tinus! Out of sight out of mind!”

Strydom said that this response was representative of Knights’ attitude towards working from home, and claimed that Knights referred to the day he worked from home as his “day off”. He believed that BFE had a “negative view” of working from home.

The tribunal heard that Strydom was placed on furlough and he did not start working again until the last day of August 2020.

On 31 August, Strydom returned to work in the office and was provided with a Covid risk assessment by administration manager Miss Howard, but the tribunal heard he was still “worried” about the risk his return posed to his son.

As a result, from September 2020 onwards, he built a screen around his desk and asked colleagues to use a post tray. He told the tribunal that they “did not take the risk of transmission of Covid as seriously as he did”.

Strydom also told the tribunal that regular cleaning and social distancing were not always “adhered to in the office”.

In January 2021, a new variant of Covid emerged and Strydom became “increasingly anxious” for his son. On 4 January, after the government announced the third national lockdown, he texted Knights and Halsey to express his worries.

He claimed that his anxiety for his son was “sky high” and he had noted the government’s advice had once again changed to “work from home” unless you reasonably cannot. Knights responded by saying that the lockdown “was nothing like the first in March 2020” and she would speak with Strydom the following day.

The next day, Strydom spoke with Halsey and Knights and expressed his concerns for his son. He requested permission to work from home “until it calms down a bit”. The tribunal was informed that, in response, Halsey remarked: “I am not putting [Knights] through that again.” He then slammed the door and left the office.

Later that day, Strydom phoned Halsey to discuss the situation once more, which resulted in Halsey saying he could not allow home working for an “indefinite” period and suggested Strydom “must do whatever you feel is necessary” to protect his son, while Halsey would do the same “for the business”.

Strydom texted Halsey at 7.40pm the same day and said he would be following the government’s advice and working from home, adding that if something happened to his son he would “have to live with” that for the rest of his life.

On 6 January, Halsey responded and said home working did not work for an “indefinite period” and suggested it had an “effect on the office”. He said he was “unable to sustain” Strydom’s role working from home and suggested he “consider all alternative options”.

Strydom questioned whether Halsey meant "furlough" or "should he hand in his notice?" when he said he was being released, and Halsey clarified that he meant "released”.

The government's recommendations at the time urged employers and employees to talk about their work arrangements, and businesses were asked to do everything within their power to support their employees' working from home. On 6 January, Strydom texted Halsey with this advice.

Halsey replied by email on 7 January and stated that he supported his decision to stay at home to protect his son, and expressed concern that home working would create a “duplication of work” for the administration team.

He also gave a range of additional reasons that Strydom could not take leave or explore alternatives; these included the impact on workers who may need additional leave because of school closures and childcare needs.

However, "importantly", there was work for Strydom to do at the time, which was different from the position in March 2020 when there was less work available, Halsey said.

On 8 January, Strydom responded via email with a host of solutions, such as “creating a shared platform” so he could access the office whiteboard electronically, which he offered to set up, and contacting engineers on their mobile rather than the office telephone.

He also indicated that he would only be obliged to work from home until the government altered its advice on lockdown after he hoped to obtain the vaccine in February 2021. Additionally, he offered to use any collected or unused annual leave during this time.

Redundancy

Strydom requested a conversation, but Halsey declined, so on 12 January he sent him another email. Halsey asserted that the office staff were already working hard and that he did not want to make things worse by implementing Strydom’s suggestions.

To achieve closure, Halsey said he had spoken to his financial consultants and Strydom’s co-workers, and he intended to downsize and restructure the company. “Neither would he seek out new contracts for the company nor did he have any plans to replace the three engineers who left during the initial lockdown,” the tribunal heard.

As a result, he could not defend paying a full-time income to a worker to whom he was unable to provide full-time employment at home, and thus he suggested a redundancy package to the claimant.

The tribunal was informed that this was Strydom's first encounter with redundancy and that it was not done so in a “consultative manner”. Halsey informed him that he would be made redundant without warning or discussion rather than telling him that he was at risk of being laid off. He had already made up his mind, according to the tribunal.

The following day, Strydom answered and complained to Halsey. He submitted an annotated copy of the company's Covid risk assessment and explained why he did not think the BFE office was a secure place for him to work. He complained about not being able to meet with him to discuss the issues.

The tribunal heard that Strydom was “aggrieved” with Halsey’s refusal to take into account any of the possibilities he had suggested to enable him to operate successfully and efficiently from home, as well as the fact that he did not appear to understand the effects of the situation on his mental health.

On 18 January 2021, Halsey sent Strydom a formal notice of redundancy. In the letter, he said: “It is of no benefit for the company to agree to your request to work from home for the foreseeable future. We are also unable to find alternative work to offer you.” Strydom was provided with three weeks’ notice of redundancy and informed his employment would terminate on 18 February.

On 22 January Strydom submitted an appeal, but it was unsuccessful.

Judge’s comments

The tribunal concluded that Strydom’s request to work from home in compliance with government guidelines on 5 January 2021 was the cause of his termination and the request “precipitated” his dismissal.

Employment judge J Galbraith-Marten said this was “manifested” in Halsey “adopting an entrenched, but mistaken, belief that [Strydom] had requested to work from home indefinitely”.

He added: “Albeit [Strydom’s] dismissal was labelled as a redundancy, the tribunal finds that was a sham to cover up the real reason. [Halsey] simply would not tolerate [him] working from home on a full-time basis even if only for a short period.”

In addition, Galbraith-Marten said that BFE “had not established a fair reason for dismissal”, because it was unable to provide any specific explanations for why Strydom could not carry out his duties from home, which he had already been doing once a week for more than three years in any case.

He added that Strydom's approach was “beyond the range of reasonable conduct open to reasonable employers in all counts in any event”.

The remedy hearing to determine his award is yet to be published.

Employment lawyer’s reaction

Amanda Trewhella, employment law director at Freeths, said this case provided a reminder to employers that the reason for dismissal must be both “genuine” and “legally fair”. “Should a claim be issued it is likely that the tribunal will see through any sham situation created to cover up the reason for termination,” she said.

“This is one of many cases going through the employment tribunals at the moment dealing with the difficult situations employers found themselves in during the Covid pandemic.

“These issues in the case arose at a time where Covid infections were high and government guidance was that employees should have been able to work from home where possible. As this was only guidance, it allowed employers some flexibility to make their own decisions, which were not always easy to make.

“In this case, the tribunal found that the real reason for Mr Strydom’s dismissal was a result of his request to work from home while the pandemic was ongoing. However, to end Mr Strydom’s employment the company decided to make him redundant. Given that this redundancy situation was not genuine and was held to in fact be a sham, the claimant’s dismissal was unfair.”

BFE has been contacted for comment. Strydom could not be reached.