Unfair dismissals in the age of coronavirus

26 May 2020 By Richard Thomas

Richard Thomas explores how employers can best mitigate the risk of claims in the new working environment brought by Covid-19

During the pandemic, employers that require their employees to work during lockdown have had to implement additional safety measures. But some have been ignoring the government guidelines, as well as their staff’s legitimate concerns. Worse, some have sanctioned their employees for raising concerns in the workplace – dismissing them on claims that they haven’t met standard of conduct. 

That’s what three delivery drivers working for a franchise store of Domino’s Pizza in Llanelli, Wales, believe happened to them. All three employees posted comments to a private employee-only Facebook group. The comments raised concerns about their health and safety, and that of their colleagues. They worried that not enough dedicated PPE was being provided, that the policies for delivery drivers did not go far enough to sufficiently ensure their safety, and that the food preparation staff within the store found it impossible to keep two metres apart, in part because of the number of staff on each shift, and the footprint of the store. 

Approximately a week later, each of them had their contracts of employment terminated. The reason for their dismissal was put down to vague ‘conduct’ reasons and was not expanded upon. In doing this, the employer opened themselves to liability for unfair dismissal under sections 100 and 103A of the Employment Rights Act 1996.

This case is representative of a wider issue brought by Covid-19 that disproportionately affects key workers and people in lower-paid jobs. This issue will only become wider in the months to come as lockdown is gradually eased and people progressively return to work. To make our new working environment a safe space, employers and employees must keep up to speed with the fast-changing regulations and should collaborate as much as possible.

Keeping up to speed with the regulations

Businesses have a legal duty to protect the health and safety of their employees by ensuring compliance with the regulations as they evolve. Since the coronavirus outbreak, they have evolved fast, so it is imperative that employers put in place effective mechanisms to ensure their business is up to speed with the latest government guidance. 

To reassure staff and demonstrate proactivity, they should implement new procedures and policies on social distancing, limit face-to-face contact, carry out rigorous risk assessments of vulnerable groups and promote good hygiene generally. 

The pandemic is also likely to result in an increase in mental ill-health. Whether employees work from home or return to the office, employers may want to consider wellbeing initiatives – such as training line managers on spotting the signs, appointing mental health first aiders, organising events and ‘wellbeing’ days, and promoting work-life balance. 

There is an inherent risk of catching the virus by entering the workplace, so enabling flexible working is highly recommended. But again, having up-to-date policies and procedures, and ensuring managers are up to speed with their content, will be key to ensure smooth functionality and avoiding unfair dismissals when business resumes. 

Meanwhile, employees can hope to see their rights enhanced. The Law Commission is aiming to extend the time limit to file a complaint, to give employees more time to consider their legal options. It is also proposing to increase the powers of the tribunals, to decide claims of breach of contract brought by employees and workers while they are still employed – not just once they have left employment. This change could see a dramatic increase in claims relating to employers mishandling the furlough scheme.

Listening to concerns

As well as changing general health and safety regulations, the coronavirus situation has created new working environments specific to each sector. In this context, promoting a collaborative culture at work is essential, to create a safe space where managers adopt softer skills with their employees. 

There is legislation, such as sections 100 and 103A of the Employment Rights Act, which protects employees raising legitimate concerns about their health and safety or that of their colleagues. Employers will need to alleviate these concerns and balance these with responsible measures, otherwise they will cause problems down the line. Unreasonable refusals of reasonable requests will not be welcomed by the tribunals.

Hopefully, this will encourage a wider culture change, whereby employers no longer think that their word is final, and listen to their employees’ genuine concerns more than usual.

Richard Thomas is a partner on the employment team at Capital Law

Deputy Director of People, Culture & Transformation

Deputy Director of People, Culture & Transformation

WC1N, London


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