COVID-19 Cases Reach The Employment Tribunal

• Published date: 16 July 2021
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Unfair/ Wrongful Dismissal, Health & Safety, Employee Benefits & Compensation, Redundancy/Layoff, Employee Rights/ Labour Relations, Employment and Workforce Wellbeing
• Law Firm: Shakespeare Martineau
• Author: Ms Lubna Laheria

For over a year now employers have had to deal with a number of previously unheard of issues such as furlough leave, self-isolation and making workplaces "COVID secure". It has been a steep learning curve and, perhaps inevitably, these situations have not always been handled in the best way. We are now seeing cases reach the employment tribunal and, in this article, we examine some of those cases that have been heard recently.

Even though the end of restrictions is in sight, many staff will remain concerned about commuting and attending their workplace and employers will need to be sensitive to this. Although the cases below are only at tribunal level and so not legally binding, they provide useful guidance on some of the issues that employers may encounter in the coming months.

Gibson v Lothian Leisure

Background

Mr Gibson, a chef, was furloughed when the first national lockdown began. During his furlough leave and in the run-up to the end of lockdown, his employer asked him to come into work. Mr Gibson was worried about catching COVID-19 and passing it on to his father who was clinically vulnerable. When he raised concerns about the lack of PPE and a non-secure COVID-19 working environment, his employer summarily dismissed him via text message, with no notice or accrued holiday pay. The message said that Lothian Leisure was changing the format of the business and would be running it with a smaller team after the lockdown. Mr Gibson brought various tribunal claims, among them one for automatic unfair dismissal.

Tribunal decision

Under section 100(1)(e) of the Employment Rights Act 1996 (ERA) 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, are protected from dismissal. There is no need for the employee to have two years' service.

In this case, the tribunal was satisfied that Mr Gibson's actions met the requirements of section 100(1)(e) because he had taken steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger. Alternatively, since the wording of the employer's text message suggested a possible redundancy situation, Mr Gibson had been unfairly selected for redundancy under section 105(3) because he had taken those steps. The circumstance of danger were the growing prevalence of COVID-19 infections and the potential significant harm that could be done to his father should he...