The Employment Team at Backhouse Jones are starting to see an influx of Employment Tribunal cases which are COVID-19 related. Whether that be for the decision not to place an employee on furlough or for the failure to comply with risk assessments and health and safety policies. The two following cases are of interest to employers and can show the Tribunal’s stance on such complaints for now.
Below is a summary of two cases relating to coronavirus and the decisions of employers which have been determined by the Employment Tribunal. As the cases deal with the decision of the Employment Tribunal, they are not binding on other Courts but may provide a useful indication of how the Tribunal may approach matters relating to the pandemic.
Kubilus v Kent Foods Ltd
In this matter the Claimant was dismissed for failing to wear a face mask.
The Claimant was a delivery driver and at the time of the incident on 21 May 2020, face masks as per the Governments guidance were optional, but the customer policy was that here the driver was delivering to made face masks mandatory.
The Respondent had clear company policies regarding health and safety and employees of the Respondent are obliged to take all reasonable steps to safeguard their health and safety. Further the Respondent’s handbook stipulated that customer instructions regarding PPE requirements must be followed.
During the delivery and despite multiple requests from the customer, the Claimant failed to wear a face mask. It was explained that the Claimant had refused to wear a mask due to being in his cab.
The customer banned the Claimant from their premises which led to an investigation at the Respondent. A thorough and reasonable investigation was undertaken, and the Tribunal confirmed that the investigation fell within the reasonable range of responses. The Claimant was then sent to a disciplinary hearing in which he was later dismissed for gross misconduct.
The Tribunal expressed that the Respondent along with having an investigation which fell within the range of reasonable responses also had a genuine belief that the Claimant was guilty of misconduct and also that there were reasonable grounds for the Respondent to conclude that the Claimant had committed misconduct. Further, the Respondent’s procedure was analysed and the was deemed to have been fair and the final question of whether the Respondent acted reasonably in all the circumstance, in treating the alleged misconduct as a sufficient reason for dismissal was answered. The Tribunal took into account the Respondent’s need to maintain good relationships with customers and also the fact the Claimant had shown no remorse along with the difficulties caused by the site ban, with this the Tribunal found the dismissal to be fair and reasonable.
In this perspective, even where the Government had not mandated that face masks had to be worn, having the provision in a reasonable policy, providing the individual was aware of the policy, if failures to comply with these reasonable policies happen; it gives the employer the option to take action on the noncompliance. However, this would depend on the circumstances and you cannot necessarily rely on the outcome of this case, so it is advisable to seek advice before taking action of the sort.
Rodger -v- Leeds Laser Cutting Ltd
In this matter the Claimant was dismissed for the refusal to attend work due to what the Claimant believed to be a serious and imminent risk.
Under sections 44 and 100 of the Employment Rights Act 1996, employees are protected from being subjected to a detriment, such as being suspended or having their pay deducted, or being dismissed for exercising their right to leave their workplace. To be protected, the employee must have a ‘reasonable belief’ that their workplace poses a serious and imminent threat to them, or to others. Employees do not need two years’ service to bring an unfair dismissal claim.
The Claimant who had been employed since 2019 worked in a large warehouse “the size of half a football pitch” with around 5 other employees.
The Claimant informed the Respondent in the early stages of the Pandemic that he wanted to self-isolate due to having small children who were vulnerable with certain medical conditions. As lockdown continued the Claimant had his employment terminated as he was not available to work, he then brought a claim for automatic unfair dismissal in that he believed there was a serious and imminent risk to health and safety.
It was found that the Respondent had taken effective measures to deal with the Pandemic and had instructed an external professional to undertake risk assessments to this nature.
The tribunal considered whether the Claimant reasonably believed that his workplace put him in “serious and imminent danger” from contracting Covid. It accepted that he had significant concerns about the pandemic and was worried about the impact it could have on his children. However, it was apparent that this had not prevented the Claimant from driving a friend to hospital. Further, the Claimant accepted that he could socially distance himself from others at work.
The Claimant had not worked for the requisite 2-year period to bring an ordinary unfair dismissal claim which would have succeeded given that he was dismissed without warning or any opportunity to appeal.
The Tribunal dismissed the claim and with doing so stated that reference to the Pandemic alone was not a sufficient reason for the Claimant to consider that there was a serious and imminent risk.
The Tribunal went on to say that if they were to side in favour of the Claimant in this matter, that this could potentially have led to any employee downing tools and not attending work due to the fears of the Pandemic.
These cases show a sensible approach to the serious nature of the pandemic, but they are decision on the facts of the particular case. Take for example the Leeds Laser Cutting case – whilst the company was successful in defending the claim had the Claimant pointed out his concerns about the workplace or referred to the pandemic and issues that had occurred in the workplace then it may have resulted in a different outcome. Businesses are therefore encouraged to seek legal advice if they face a situation which could ultimately lead to an employment claim.