Employee loses unfair dismissal claim after refusal to return to work due to coronavirus health and safety fears

Employees are protected by law from being subjected to a detriment, such as being suspended from work or having their pay deducted, or being dismissed, for exercising their legal right to leave their workplace where they have a ‘reasonable belief’ that their workplace poses a serious and imminent threat to them, or to others. This is essentially a workplace health and safety protection and is a “day-one” right.  Employees don’t need two years’ service to bring an unfair dismissal claim on this basis.

In a recent tribunal case, an employee worked as a laser operator in a large warehouse about “the size of half a football pitch” with typically five other people working in the warehouse. 

The business remained open the first national during lockdown in England and it informed its staff about the safety measures it had put in place to protect staff against Covid-19. These included social distancing, wiping down surfaces, and staggering start, finish and break times to avoid people congregating. It also provided masks for staff to use if they wanted to.

Shortly before the first lockdown, one of his colleagues displayed symptoms of Covid-19 and was sent home to isolate.

A few days later, the employee developed a cough which he attributed to the temperature and dust in the warehouse. He was not concerned it was a symptom of Covid-19 and left work at his usual finish time. However, the employee decided to self-isolate for a week and obtained an NHS isolation note. 

The employee informed his manager by text that he was going to stay off work ‘until the lockdown has eased’ due to having a child at high risk as he had sickle cell anaemia. His other child was only 7 months old and he didn’t know if that child had any underlying health conditions yet.  

His manager replied by text saying, “okay mate, look after yourself”. There was no other contact between the parties until about a month later when the employee found out that he had been dismissed and texted his manager to ask why his employment had ended.  The employee did not have the requisite minimum 2 years’ service for acquiring unfair dismissal rights and so could not claim ordinary unfair dismissal.

The employee alleged that his dismissal was automatically unfair (for which he did not require 2 years’ employment service) as he had exercised his legal right to leave his workplace due to reasonably believing the workplace put him in “serious and imminent danger” of contracting Covid-19.  

The tribunal examined whether the employee reasonably believed that his workplace put him in “serious and imminent danger” from contracting Covid-19 based on the evidence, in order to determine whether the employee had been automatically unfairly dismissed on this basis. The tribunal accepted that the employee had significant concerns about the Covid-19 pandemic generally and was worried about the impact it could have on his children at a time when there was huge uncertainty about how children might be affected by the virus. 

The tribunal however found the employee’s case contradictory and confusing at times. For example, (in contradiction to the employee’s reported anxiety regarding contracting coronavirus) the tribunal heard evidence that during his one week self-isolation period, the employee had driven a friend to hospital.  On the one hand, the employee gave evidence that he had not left home for nine months. On the other hand, he told the tribunal he had spent a period of time working in a pub during the pandemic, where safety measures were in place.  

The employee didn’t provide any evidence to show that he believed his workplace put him in imminent danger. In fact, he accepted that he could socially distance himself from others at work. The text he sent to his manager said he was going to stay off work until the lockdown eased; nothing to do with the conditions of employment. 

The tribunal concluded that the employee’s decision to stay off work was not directly linked to his working conditions; rather, his concerns about the virus were general ones, which were not directly attributable to the workplace. It was clear that the employee was concerned as to the virus in general, rather than the risk of contracting the virus in his workplace due to his workplace conditions.  He referred to his own home as being the safest place and he told the tribunal that he chose to self-isolate ‘until the virus calms down’. 

Comment

To rely on the statutory protection, the employee must demonstrate that their health and safety concerns relate to their workplace, rather than being general concerns.  

Where employees do raise health and safety concerns about their workplace to their employer, to demonstrate that they have taken the appropriate steps to protect their staff, employers should explain the measures they have implemented. Where the employer is based in England, these measures should be in accordance with the government guidelines on ‘working safety during coronavirus’. Separate guidance applies in Scotland, Wales and Northern Ireland.  Employers should make any required adjustments to their risk assessments or workplace measures after discussing the employee’s concerns. 

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