Lockdown restrictions in the UK have now been lifted in their entirety with all businesses receiving the green light to open their doors.

Whilst some employees may be reluctant to return to the workplace because they have found some degree of remote working to be beneficial, others may still have concerns about the risks of Covid-19.

As many employers will now be aware, employees who refuse to attend work because of concerns relating to Covid-19 may be protected against detriment (including dismissal), even if they don’t yet have 2 years’ service.

In this month’s update, we break down the elements of a claim for automatic unfair dismissal under section 100 of the Employment Rights Act highlighting recent judgements in Covid-19 related claims.

Serious and imminent danger

As noted in our earlier Covid-19 case update (The Consequences of Covid Related Dismissals), in order for a s.100 claim to succeed, an employee must first reasonably believe that there is a serious and imminent danger to their health and safety.

Whether or not concerns about Covid-19 will satisfy this criteria, will depend on government guidance in force at the time these concerns were raised, how employers have sought to allay those concerns, and perhaps even the employee’s conduct outside of work.

Appropriate steps to protect self or others

If an employee is able to satisfy the above element, a tribunal will then consider whether or not the steps they took, or proposed to take, to protect themselves or another were appropriate in the circumstances.

In a recent judgement (Accattatis v Fortuna Group (London) Ltd), the employment tribunal found that an employee who refused to attend the workplace and instead demanded that he either be permitted to work from home or placed on furlough had not taken appropriate steps to protect himself or others. Although it was accepted that the employee’s concerns about Covid-19 had been reasonable, the employer was able to demonstrate that it was not possible for them to have worked from home. The employer was also a producer of PPE, its employees were therefore keyworkers and there had in fact been an increase in the employee’s workload, as such the employer did not consider the employee to be eligible for furlough. The tribunal determined therefore that demanding to be furloughed or permitted to work from home, were not appropriate steps and so there could be no protection against dismissal under s.100.

Dismissal arises from the appropriate steps

If a former employee can establish the two grounds above, the tribunal will consider whether their dismissal arises wholly, or in the event that there are multiple reasons for dismissal, primarily as a result of their taking or proposing to take ‘appropriate steps’.

In a recent tribunal decision (Gibson v Lothian Leisure), a claimant was successful in their claim of detriment under s.100 after they were dismissed for raising complaints about a lack of PPE in their workplace. In making this finding the tribunal noted that prior to raising those complaints, the employee had performed well and was even considered a valuable member of staff.

There was no evidence to suggest that there could be any other reason for a breakdown in the employment relationship and it was clear therefore that his dismissal had resulted from the concerns raised. This judgement stands as a reminder to employers to keep detailed records of any employment issues, particularly those relating to performance.

As furlough comes to an end this month employers will need to think about how to bring all employees back into work. This as a result, may lead to an upturn in concerns regarding Covid-19, particularly if such employees have been furloughed for a prolonged period of time. It’s important that employers take a consistent approach in dealing with these concerns and make efforts to address employee fears.

If you would like support dealing with any Covid-19 concerns or preparing for the end of furlough, please contact us.

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