Written by Brabners LLP
The employment tribunals have recently heard two separate claims brought by employees who had raised concerns regarding COVID-19 and were dismissed by their respective employers. The two cases produced contrasting decisions, highlighting the complexity surrounding employee rights in the pandemic and how the tribunals will interpret the specific facts of a case.
The first case, Accattatis v Fortuna Group (London) Ltd involved an employee who raised concerns about commuting to the office during the pandemic and repeatedly asked his employer to furlough him. His employer refused and he was dismissed. The Tribunal found that his dismissal was not automatically unfair.
The second case, Gibson v Lothian Leisure, involved an employee who raised health and safety concerns in regard to a lack of PPE and other Covid-secure workplace measures as he was worried about catching COVID-19 and passing it to his father, who was clinically vulnerable. The Tribunal found that his dismissal was automatically unfair.
Section 100(1)(e) of the Employment Rights Act 1996 (“ERA 1996”)
Employees must have two years’ continuous service before they have the right to bring an “ordinary” unfair dismissal claim.
However, there is no minimum length of service required to bring an “automatically” unfair dismissal claim if the employee can show that the reason, or principal reason for their dismissal was that:
“in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger” (s100 (1)(e) Employment Rights Act 1996).
In the two cases below, neither employee had the required length of service to bring an ordinary unfair dismissal claim. However, both employees pursued a claim of automatically unfair dismissal on the grounds that they believed they had been dismissed for the reason set out above.
Accattatis v Fortuna Group (London) Ltd
Mr Accattatis worked for Fortuna Group (London) Ltd which is a distributor of PPE. During the initial peak of the pandemic in March and April of 2020, Mr Accattatis repeatedly asked to be placed on furlough as he was concerned for his health and safety when travelling to work using public transport and also in the office itself. However, his job could not be done from home and since Fortuna Group is a company which produces PPE, they were extremely busy during that time period and so told Mr Accattatis on three occasions that he could not be furloughed. Instead, they offered to allow him to take holidays or unpaid leave. On all three occasions Mr Accattatis insisted on being furloughed and on the third occasion he was dismissed the same day by email on 21 April 2020.
Mr Accattatis brought a claim alleging that he had been automatically unfairly dismissed under section 100(1)(e) of the ERA 1996.
The tribunal accepted that Mr Accattatis reasonably believed that he was in serious and imminent danger. The tribunal took into consideration the government guidance at the time that the pandemic presented a serious and imminent threat to public health, as well as the multiple emails Mr Accattatis had sent to his employer expressing his concerns about his commute to work.
However, Mr Accattatis’ claim ultimately failed because the tribunal did not accept that the steps which Mr Accattatis had taken (or proposed to take) to protect himself from danger were appropriate. Mr Accattatis not only wanted to stay at home, but he also wanted to be allowed to work from home (on full pay) or be furloughed (on 80% of pay), rather than taking holiday or unpaid leave as suggested by his employer. The tribunal considered that Mr Accattatis’ demands were not appropriate steps to protect himself from danger, so his claim failed.
Gibson v Lothian Leisure
Mr Gibson was employed by Lothian Leisure as a chef in a restaurant. In March 2020 Mr Gibson was furloughed as the restaurant was forced to close due to the pandemic. When the restaurant reopened, Mr Gibson raised concerns to Lothian Leisure about returning to work due to the lack of PPE and other Covid-secure workplace measures. Mr Gibson was particularly concerned about catching COVID19 and passing it to his father who was clinically vulnerable. The response received by Mr Gibson from his employer was, apparently, to “shut up and get on with it”.
On 30 May 2020, Mr Gibson was then dismissed by text message without having any prior discussion with Lothian Leisure and he was not paid any accrued holiday pay or notice pay.
The employment tribunal decided that Mr Gibson had taken appropriate steps to protect his father in what he reasonably believed were circumstances of serious and imminent danger. The tribunal therefore concluded that the requirements under section 100(1)(e) ERA 1996 had been satisfied and that Mr Gibson had been automatically unfairly dismissed.
In addition, Mr Gibson was awarded pay in lieu of notice and accrued but untaken holidays, underpaid furlough pay as well as pension contributions that had been deducted but not paid into his pension scheme.
What differentiates the cases?
In both cases it was established that the claimants had a reasonable belief that they (or someone else) were in serious and imminent danger. The key difference between the cases was the appropriateness of the steps which they had taken (or proposed to take) to protect themselves (or, in Mr Gibson’s case, his father) from the danger.
It is notable that in Mr Gibson’s case, the employer did not attend the tribunal hearing or submit a response to Mr Gibson’s claim. This, coupled with the “robustly negative” manner in which Lothian Leisure had apparently dealt with Mr Gibson, is likely to have influenced the tribunal’s judgment. Whilst Mr Accattatis’ concerns were acknowledged on three occasions and his employer made reasonable alternative suggestions to protect him from the danger which he perceived, Mr Gibson’s concerns appear to have been ignored and he was dismissed in a manner which could have led the tribunal to empathise with him.
As always, cases such as these turn on their own individual facts. Nevertheless, some important guidance can be drawn from these judgments.
Mr Gibson’s case highlights the importance of employers taking employees’ concerns seriously and taking reasonable steps to try and reduce the perceived danger to the employee.
In Mr Accattatis’ case, the fact that his employer had put forward the option to take holidays or unpaid leave was sufficient for the tribunal to conclude that, by refusing these options, Mr Accattatis had failed to take reasonable steps to reduce the danger posed to himself. This shows that employers do not necessarily need to meet all the demands of employees who have genuine concerns about their health and safety, but employers can help themselves by showing that they have taken steps and provided options to reduce the perceived danger.
It is also important to note that before dismissing an employee, it is important to engage in dialogue to understand the employee’s concerns and seek a resolution, even if the employee does not have the qualifying service to pursue an ordinary unfair dismissal claim.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership.