Automatically unfair dismissal for raising Covid concerns?

In the recent case of Mr B Gibson v Lothian Leisure, the Employment Tribunal (“ET”) considered whether the Claimant was automatically unfairly dismissed after raising his concerns about the safety of the workplace and the risk this presented to him in caring for his extremely clinically vulnerable father.

Background

The Claimant was employed as a restaurant chef with the Respondent and was placed on furlough leave in March 2020 when the hospitality sector shut. The Claimant reluctantly returned to work in April 2020 to assist the Respondent in preparing for reopening. The Claimant lived with his clinically vulnerable father who was shielding and who suffered from severe medical conditions including a brain tumour, Colitis and Addison’s disease. Upon returning to work, the Respondent had no covid-safety measures in place, the Claimant informed the Respondent of his concerns regarding the safety of the workplace and that if he caught COVID-19 at work this would seriously jeopardise his father’s health.

The Respondent was dismissive of the Claimant’s concerns and aggrieved by his reluctance to return to work, informing him to “shut up and get on with it.” Without any prior discussion or process, the Claimant was dismissed by text in May 2020. The Respondent’s justification was a re-organisation of staff and therefore his role was effectively redundant. The Claimant brought a claim for automatic unfair dismissal alongside claims for notice pay, accrued annual leave, pension contributions and underpayment of furlough leave pay.

The Law

Sections 44 and 100 of the Employment Rights Act 1996 (“ERA”) provide protection to employees from being subjected to a detriment or from being dismissed for exercising their right to leave the workplace as a result of health and safety concerns. An employee who is dismissed shall be regarded as unfairly dismissed if the reason for the dismissal is that:-

“in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work.” (Section 100(1)(d) ERA 1996)

In ordinary unfair dismissal claims, employees need at least two years’ service to bring a claim, however as this is a day one right, there is no required length of service to bring a claim for unfair dismissal on health and safety grounds. Employees must demonstrate a “reasonable belief” that their workplace posed a serious and imminent threat to them or to others at the time and date he/she left the workplace or refused to return.

Decision

The ET decided the claim in favour of the Claimant and were satisfied that there was a serious and imminent threat at the time the Claimant raised his concerns. The ET found the Claimant’s belief of an unsafe workplace and the danger to his clinically vulnerable father to be well founded.

The ET concluded that the Respondent either decided to dismiss the Claimant as he took steps to protect his father or that he was selected for redundancy because he had raised this issue and taken steps to protect his father. Either way, the ET found that the Claimant was automatically unfairly dismissed.

The ET also considered if the Claimant had a claim under the whistleblowing provisions of the ERA. However, as the concern had only been for the health of his father, the tribunal was not satisfied that this met the public interest test under section 43B of the ERA.

The Respondent did not submit a response to the claim or attend the hearing.

Comment

Since the beginning of the pandemic, we have seen an increase in COVID related claims coming through the Tribunals. So far, it has been relatively easy for employees to establish a reasonable belief that the COVID-19 pandemic has created circumstances of danger which are serious and imminent to individuals. It is important that employers are aware of their statutory duty to ensure the health safety of their employees at work, identify any risks and take appropriate steps to ensure the health and safety of their workforce is protected. Employers who create a safe, COVID-secure environment are more likely to have a stronger defence to any potential claims about workplace safety and serious risks to health.

Mr B Gibson v Lothian Leisure [2021] ET/4105009/2020

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