Over one year on from the UK’s first lockdown we’re now receiving judgments for unfair dismissal claims raised at the outset of the pandemic and which relate to various covid issues.
In this update we’ll review some key cases and consider the wider implications of these judgments.
Rodgers v Leeds Laser Cutting Limited
On 23 March, one of Mr Rogers’ colleagues presented symptoms of Covid-19 and was subsequently sent home to isolate. Two days later Mr Rogers developed a cough. Although he attributed his cough to dust, he nevertheless sought advice from his GP and obtained a self-isolation note running until 3 April. Mr Rogers then contacted his line manager to advise that he would not be returning to work once his isolation period ended and would remain at home until lockdown eased. The reason for his refusal to return was concerns over the welfare of his two children, both of whom were considered vulnerable. Mr Rogers’ line manager accepted this reasoning however on 24 April he was informed that he had been dismissed.
Leeds Laser Cutting Limited remained open throughout lockdown, Mr Rogers therefore alleged that he had been dismissed for refusing to return to work. Under s.111 of the Employment Rights Act all employees (regardless of length of service) are protected from subjected to a detriment for refusing to attend work if they reasonably believe that doing so would pose an imminent threat to their safety; Mr Rogers therefore claimed unfair dismissal despite not having two complete years’ service.
The Employment Tribunal considered whether or not Mr Rogers’ had a reasonable belief that attending work would endanger his safety. While it was accepted that he had genuine concerns about the safety of his children, the Tribunal determined that he did not have a reasonable belief that attending work would place him at any significant risk and as such had not been unfairly dismissed for this reason.
While Mr Rogers’ failure to produce any evidence to the contrary was instrumental in that determination, the Tribunal further noted that he had not raised any concerns about health and safety prior to his absence and based on guidance available at the time his employer had sufficient measures in place to allow for social distancing and adequate sanitation. While this decision is not binding it provides a useful insight into how Tribunals are likely to approach such cases. As we continue to wait for a full reopening for businesses, employers should be alert to the potential risks of dismissing employees who are reluctant to return.
Kubilius v Kent Foods Ltd
In May 2020, Mr Kubilius (a lorry driver for Kent Foods) refused to wear a mask whilst on a client site which was a breach of the client’s policy to wear face masks at all times. While Mr Kubilius was not aware of that policy until attending the site, Kent Foods had a policy that employees must comply with all customer requests relating to the use of PPE. As a result of refusing to wear a mask, he was banned from the client site as such, Mr Kubilius could no longer perform his contractual duties.
Following a disciplinary process Mr Kubilius was dismissed for gross misconduct. While it was noted that a reasonable employer might have dealt with this matter by way of warning, the Tribunal ruled that Kent Foods Ltd had been entitled to terminate Mr Kubilius’ employment because the dismissal did not arise from the non-compliance itself but from the impact that non-compliance had on his ability to perform his role, and on his employer’s business relationships. It should also be noted that Mr Kubilius had refused to accept any wrongdoing during the disciplinary process which reasonably caused his employer to lose trust in him.
Again, this decision is not binding however it demonstrates that in some circumstances the impact of employee’s actions on an employer’s relationship with business contacts will be sufficient to render a dismissal fair.
Tips for employers
Both of these cases highlight the importance of clear and open communication with employees.
Employers who are still in the process of facilitating a return to work should include details of the measures that have been implemented in response to covid-19 in correspondence with employees. Employers should also continue to review covid-19 measures in line with the latest guidance.
If employees have concerns about returning, employers should offer to discuss these in greater detail with them before seeking to dismiss to ensure they understand their situation fully.
Employers should also ensure that employees are aware of new or amended policies – particularly where these require them to observe third-party policies and instructions. It is preferable to issue new and amended policies by email; this creates a paper trail which will evidence that employees were in receipt of latest policy documents.
Please contact us. if you have any concerns about how to deal with breaches of covid policies or if your staff are refusing to return to work.