More Covid related cases are going to the Employment Tribunals, although not reaching the Higher Courts as yet. As such the decisions don’t bind future Tribunals but may be seen as a useful guide. Here is a brief summary of some of those cases:
In Prosser v Community Gateway Association the Claimant was pregnant and a zero hours worker. She was sent home at the start of the pandemic because Gateway believed that she was clinically vulnerable. They undertook a risk assessment and based on this delayed her return until they had implemented much fuller social distancing measures at work. The Claimant was also told that she wouldn’t be asked to undertake night shifts because of the lone working requirement which involved visiting tenants’ homes and providing physical support. Gateway believed this was unsafe. It did though seek to pay her well and in excess of her contractual entitlement. A Tribunal dismissed her claims of discrimination and victimisation and took the view that the employer took account of public health advice and Covid regulations at the time and had undertaken a formal risk assessment. It was seeking to protect the employee and her unborn baby. This case tends to suggest that if an employer is well motivated and has carefully thought through its actions a Tribunal won’t penalise it if with hindsight and with the benefit of updated guidance and knowledge about Covid the measures taken appear to be excessive i.e. a well meaning employer who looks carefully at a situation will be given some leeway.
This contrasts with another case of Ham v ESL BBSW Ltd. Mr Ham was dismissed from his cleaning service job after refusing to deliver equipment to his self-isolating manager’s home who had Covid symptoms (and was unvaccinated). Mr Ham offered to take the equipment to another location where it could be stored securely and during the disciplinary process expressed concern for his and his family’s health. A Tribunal took the view that the main reason for his dismissal was because he had raised health and safety concerns and therefore the dismissal was automatically unfair. Whilst the Tribunal expressed some sympathy for an employer dealing with an uncertain situation at the start of the pandemic, it was very clear that sending an employee to the home of someone who was known to have Covid when that person was concerned about doing so wasn’t appropriate.
In Rodgers v Leeds Laser Cutting, an Employment Tribunal found that the dismissal of an employee who refused to return to work until after lockdown because he feared that he would infect his children with Covid was not automatically unfair. The employee argued that returning to work would risk infecting his vulnerable children, and as he had not been employed for 2 years claimed that his dismissal for refusing to return to work was automatically unfair because he had been exercising his right to leave the workplace and protect himself where he reasonably believed there was serious and imminent danger. The Tribunal decided he could not establish a reasonable belief in serious and imminent danger, taking into account that he had actually breached self-isolation guidance for another purpose, and that he could not actually show any workplace danger. Whist this decision does not bind future Tribunals, it does demonstrate the importance of implementing Covid-secure measures in the workplace. This makes it harder for the employee to establish that their workplace is dangerous.
In Khatun v Winn Solicitors Ltd, an Employment Tribunal found that the dismissal of an employee for refusing to agree changes to her contract that would have allowed her employer for a defined period to unilaterally reduce her pay and hours to 80% or place her on furlough was unfair. In some circumstances business can unilaterally change the contract of their employees where there are sound, good business reasons to do so, and if the employee refuses then dismissal may be fair. However, even where this may be the case the business should carry out a meaningful consultation with the employees concerned and consider alternatives to any potential dismissal. It was this lack of consultation that proved fatal to the employer here, although interestingly the tribunal did not comment on the employer’s use of threats of dismissal to encourage agreement to the variation. This is an issue that has been debated in Parliament recently, reviewing the use of “fire and rehire” tactics. Employers should use caution when considering such tactics which could indicate a reluctance by the employer to consult or consider alternatives and consequently result in an unfair dismissal finding.