Employment Tribunal Cases Published in Response to COVID-19 Health and Safety Concerns in the Workplace

An issue for many employers during the pandemic has been how to deal with concerns raised by employees about health and safety and returning to the workplace.

The below two cases involve employees who were dismissed early on in the pandemic and who had not been employed for the two years needed to obtain ordinary unfair dismissal protection. Both of the employees claimed their dismissal was automatically unfair under s100(1)(e) Employment Rights Act 1996 (for health and safety reasons). For such a claim to be successful an employment tribunal must find that the employee took appropriate steps to protect themselves in circumstances of danger which they reasonably believed to be serious and imminent and that they were dismissed as a result. Employees do not need to have any particular length of service to be able to make such a claim.

Accattatis v Fortuna Group (London) Ltd

Mr Accattatis was employed on 8 May 2018 as a sales and project marketing co-ordinator by Fortuna, a company that sells and distributes PPE.

During the first lockdown, Mr Accattatis expressed that he felt uncomfortable commuting to work by public transport and attending the office, due to concerns for his health. He made repeated requests to work from home or to be placed on furlough. Fortuna denied his request to work from home as the nature of his role meant that he needed to be on the premises, dealing with daily deliveries. Fortuna suggested that Mr Accattatis took holiday pay or unpaid leave if he wanted to self-isolate. Mr Accattatis declined this proposal and asked three more times to be furloughed. He was dismissed on 21 April 2020.

Mr Accattatis made a claim, amongst others, for automatic unfair dismissal. The tribunal took into account Mr Accattatis’ emails expressing his concerns and the government announcement on 14 February 2020, classifying COVID-19 as a serious and imminent threat to public health. The tribunal accepted that there were circumstances of danger which Mr Accattatis could have reasonably believed to be serious and imminent. It then went on to consider whether Mr Accattatis took appropriate steps to protect himself and was of the view that not only wanting to stay at home (which had been agreed) but also demanding that he either be placed on furlough or be allowed to work from home were not appropriate steps to protect Mr Accattatis from the danger. His claim therefore failed.

The tribunal also went on to state that, even if it had found that Mr Accattatis had taken appropriate steps to protect himself, his claim still would have failed because its finding was that the sole or principal reason for Fortuna’s decision to dismiss was not that Mr Accattatis took or proposed to take the appropriate steps to protect himself. Instead, the tribunal found that the reason Fortuna dismissed Mr Accattatis was because it perceived him to be a difficult and challenging employee who wrote impertinent emails and it wanted to prevent him from achieving two years’ qualifying service and therefore protection against ordinary unfair dismissal.

Gibson v Lothian Leisure

Mr Gibson commenced employment as a chef with Lothian Leisure in February 2019. As a result of the first lockdown, the restaurant closed temporarily and Mr Gibson was put on furlough. Mr Gibson was later asked to undertake some work at the restaurant in preparation for the re-opening. Mr Gibson expressed concerns about the lack of PPE or other COVID-secure measures in place and communicated to his employer that he was worried about catching COVID-19 at work and passing it onto his father, who was clinically vulnerable and shielding. The employer's response to this was robustly negative, and he was told to "shut up and get on with it".

Mr Gibson was dismissed by text message with immediate effect on 30 May 2020, with no prior discussion or process. The message stated that Lothian Leisure were changing the format of the business and would be running the day-to-day business with a smaller team. Mr Gibson did not receive any notice pay or pay for accrued untaken annual leave.

Mr Gibson brought a number of claims, including one for automatically unfair dismissal. The tribunal found that Mr Gibson was dismissed either because he had taken steps to protect his father as he reasonably believed the pandemic posed serious and imminent danger, or by unfair selection of redundancy as he had taken those steps to protect his father.

The tribunal held that Mr Gibson had been automatically unfairly dismissed and also awarded Mr Gibson pay in lieu of notice and untaken holiday and payment in relation to underpaid furlough pay and pension contributions.

What do these cases mean for employers?

These cases, although not binding on future tribunals, provide helpful guidance for employers in a situation where an employee is refusing to attend the workplace as a result of the pandemic or for other health and safety reasons.

Complying with relevant workplace COVID safety guidelines and ensuring that there is clear communication with employees about safety measures in the workplace and return to work plans will be key to defending such claims. Workplace guidelines remain in place in England and in Wales respectively, notwithstanding relaxations in certain elements of the public health guidance.

Employers should carefully consider employees’ concerns regarding health and safety at work before making any decisions regarding their employment, regardless of the amount of time they have been employed.

For further information, contact a member of Lanyon Bowdler’s employment team.