The pandemic required many employers to make difficult decisions in rapidly changing circumstances, giving rise to concerns this would lead to a deluge of Employment Tribunal claims. We look at some of the early cases to see what lessons can be learnt when planning for a return to work.

Employment Tribunal (ET) decisions are starting to be published on key issues such as employees refusing to work, compliance with health and safety rules and clinically vulnerable employees. We summarise some of the key points below.

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1. Employees refusing to work

Employers who were able to continue operating during lockdowns found that some of their employees refused to attend work. Employees have statutory rights to stay away from work or take other appropriate steps to protect themselves (or others) where they reasonably believe there are circumstances of serious and imminent danger.

The case of Accattatis v Fortuna Group involved a sales and project marketing co-ordinator who requested to be furloughed or to be allowed to work from home, given his concerns about commuting and attending the workplace. The employer offered annual leave instead. The ET found that the employee could not work from home and that he could not simply refuse to attend the workplace due to the pandemic.

Contrast Montanaro v Lansafe Ltd, in which an IT professional found himself in Italy on annual leave when lockdown was announced and decided to remain there. In finding the employer’s decision to dismiss him unfair, the ET took the view that the threat of coronavirus itself was a serious and imminent danger and that the employee was taking appropriate steps to protect himself by working remotely from Italy.

In Rodgers v Leeds Laser Cutting Ltd, however, the ET observed that if the virus was itself capable of creating circumstances of serious and imminent danger, this would result in the law protecting any refusal to work in any circumstances simply by virtue of the pandemic. The employer in that case had implemented the government’s workplace safety guidance and the employee had not raised any concerns. The ET concluded that the employee had no right to absent himself from work.

Firm conclusions cannot be drawn from this small handful of decisions, but it seems likely that ETs will generally follow the approach in Rodgers and require some evidence that the employer is failing to take proper precautions, or other evidence of particular danger before an employee can be justified in refusing to attend work.

The way in which the employer and employee have behaved also makes a difference. In Montanaro, the employer gave the employee no advice on whether he should stay in Italy or return to the UK, and sent a dismissal letter to his UK address, despite knowing he was in Italy.

In Rodgers, the employee left the workplace with a casual “see you later mate” and was caught flouting self-isolation rules outside of work while trying to claim that he was justified in not attending work.

Time has moved on since these cases, with most people now being vaccinated and the government recently lifting most restrictions and encouraging a return to work. Nonetheless, the potential certainly remains for employees to meet the “serious and imminent danger” test, such as where their employer has failed to put in place suitable health and safety measures.

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2 Dismissal for failure to comply with health and safety rules

While some employees have objected to attending the workplace due to their concerns, others have refused to comply with their employer’s workplace safety guidance. Kubilius v Kent Foods Ltd concerned a delivery driver who was dismissed for failing to wear a mask while in his lorry cab at a client site. The ET found the dismissal to be fair despite the official guidance around mask wearing at the time having been optional.

This case supports an employer’s right to enforce its own health and safety rules even where they go beyond government guidance. There will still be cases where dismissing an employee for a failure to wear a mask would constitute an unfair dismissal, for example if a medical exemption applies, but employers will be in a stronger position to enforce requirements that have been identified as control measures in their health and safety risk assessment.

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3 The clinically vulnerable

One of the most difficult issues for employers to get right has been the protection of people who are clinically vulnerable. There have only been a few decisions on this, but it appears that ETs are backing a cautious approach to those whose health is most at stake.

In Prosser v Community Gateway Association Ltd, the ET found there was no unlawful discrimination against a pregnant worker when she was sent home at the beginning of the pandemic and not allowed to return until health and safety measures had been put in place. The ET commended the employer on doing everything it could to keep the employee and her baby safe during the pandemic, including paying her beyond her contractual entitlement.

In Gibson v Lothian Leisure, the ET found that a chef was automatically unfairly dismissed when he refused to return to work having raised concerns about the lack of any health and safety measures and the risk of infecting his clinically extremely vulnerable father.

The employer did not submit a defence or attend the hearing, so the ET heard no evidence to dispute the employee’s account that there were no precautions and he was told to just “shut up and get on with it.” This case shows that an employee’s right to protect “other people” against danger can, at least in the circumstances of the pandemic, extend to family members at home.  However, at the time of this case the shielding guidance was in place for the clinically extremely vulnerable and the vaccine programme was not yet underway. It would not necessarily be reasonable for employees to take similar action to protect their clinically vulnerable relatives today.

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4 Conclusion

ETs are in the difficult position of revisiting the circumstances of the first year of the pandemic and the guidance applicable at the time. They are recognising the difficult circumstances in which employers were forced to operate, and ET decisions generally appear to be well balanced while strongly influenced by whether the employer and employee behaved reasonably or unreasonably overall.

For employers facilitating a return to work, the most important lessons from the ET decisions so far are to consult with staff, update risk assessments, implement suitable Covid safety measures, and ensure these are communicated to staff and properly enforced. ETs have consistently found in favour of claimants where the employer has not taken appropriate steps to protect staff.  

Finally, it is important to keep in mind that the ET decisions highlighted above mainly concerned events during the first few months of the pandemic, since when the circumstances and government guidance have evolved considerably. ETs will assess any case based on the prevailing Covid situation and guidance in place at the relevant time, which means that cases on similar facts, taking place at a different date could be decided differently today.

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If you have any specific questions you would like advice on, then please contact: Abi.Frederick@lewissilkin.com or koichiro.nakada@lewissilkin.com of LewisSilkinLLP.