Avoiding automatic unfair dismissal claims during Covid-19

7 Apr 2020 By Caroline Field and Remziye Ozcan

Employees are likely to be protected from dismissal if they choose to stay away from a dangerous workplace, so businesses need to tread carefully, say Caroline Field and Remziye Ozcan

The coronavirus pandemic has the potential to make any workplace unsafe. The virus itself, coupled with government guidance for ‘isolation’, opens up an unexpected number of possible scenarios under which staff may find themselves raising health and safety concerns. This unprecedented era may see an increase in automatic unfair dismissal claims arising from health and safety matters.

All employers have a duty to provide a safe place of work. The government has released new guidance for employers relating to Covid-19 and their role in helping reduce the spread of the virus. 

What is automatic unfair dismissal?

Some reasons for dismissal are classed as ‘automatically unfair’ when the reason for dismissal is proscribed by certain statutory provisions as inadmissible. Employees are protected from ‘automatic’ unfair dismissal. Inadmissible reasons include certain health and safety-related scenarios, such as:

  • undertaking designated health and safety activities;
  • dismissal of health and safety representatives or committee members for carrying out certain functions;
  • raising health and safety concerns through other means;
  • leaving or staying away from a dangerous workplace; or
  • taking action to prevent danger.

Notably, dismissal for an inadmissible reason is always deemed to be unfair and employees do not need two years’ service to bring such claims. Damages for ordinary unfair dismissal are capped at the lower of £86,444 or a year’s salary, but employment tribunals can award uncapped damages for an automatic unfair dismissal.  

How does this tie in with the Covid-19 landscape?

Protection from dismissal of an employee for leaving or staying away from a dangerous workplace protects employees who are dismissed because, in circumstances of serious and imminent danger, the employee refused to work while the danger persisted.  

The danger need not be confined to physical aspects of the workplace, so the invisible coronavirus would arguably be covered by the law. Employees are likely to be protected from dismissal if they choose to stay away from their workplace if, for example, an employer is refusing to comply with government advice on social distancing, deep cleaning or PPE.

What about an employee who lives with a high-risk family member who has been advised to self-isolate? Would an employee be protected from dismissal if they complained and/or refused to attend work because they feared that the lack of steps to facilitate social distancing would put them and their family member at risk? Arguably, yes. Dismissal for taking action to prevent danger protects employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger. Importantly, this protection does not depend on whether the employer believes in the presence of danger but how the employee honestly and reasonably regards the situation – it is the employee's state of mind that is relevant, not the employer's. 

Advice for employers 

Those that are making rushed decisions to dismiss, including dismissal of those members of staff with very little service whom they consider to have minimal employment rights, should be reminded of the importance of properly interrogating the factual circumstances first and determining if there are likely to be underlying health and safety matters at play. 

Rushed decisions made in a time of panic may have much wider economic and legal consequences and leave businesses facing claims for potentially uncapped compensation, not to mention damage to reputation and the morale within their organisations.

Caroline Field is a partner, and Remziye Ozcan a senior associate, at Fox & Partners

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