Recent Employment Tribunal (ET) decisions have shed light on the risks that can arise for employers where employees refuse to attend the workplace because of COVID-19 concerns. We consider below how ETs have dealt with claims of discrimination and automatic unfair dismissal related to COVID-19.
In X v. Y (ET 241947/2020), an employer withheld an employee’s wages after she refused to attend the workplace due to her fear that she would contract COVID-19 and pass it on to her vulnerable husband. The employee brought a claim for unlawful discrimination arguing that her opinion regarding the risk of COVID-19 and the need to protect herself amounted to a philosophical belief that was capable of constituting a protected characteristic under the Equality Act 2010.
The ET disagreed. It found that the employee’s view was not a philosophical belief protected under the Equality Act 2010 but “a widely held opinion based on the present state of information” and a “reaction to a threat of physical harm”. Her claim therefore failed.
Automatic Unfair Dismissal
Employees, irrespective of length of service, have a statutory right not to be dismissed for failing to attend the workplace if they have a reasonable belief that their workplace poses a serious or imminent threat to them or others. They also have the right not to be dismissed because they have raised health and safety concerns. If employers breach these rights, they will be exposed to claims of automatic unfair dismissal.
In Rodgers v. Leeds Laser Cutting Ltd (ET 1803829/2020), the employee was dismissed after telling his employer he would self-isolate “until the virus calm[ed] down”. His claim for automatic unfair dismissal was unsuccessful, however, because the ET thought his decision to stay at home stemmed from a general fear of COVID-19, rather than a belief that his workplace posed a serious and imminent danger. His employer’s safety measures were adequate, and the employee had never raised concerns about COVID-19 safety at work with his employer.
In contrast, in Montanaro v. Lansafe (ET 2203148/2020), the employee was on holiday in Italy when lockdown was declared and he immediately asked his employer whether he should return to the U.K. The employer told him to wait for further instructions but only communicated with him sporadically. As such, the employee did not return to the U.K. and started working remotely from Italy but was dismissed by the employer shortly after. The ET upheld the employee’s claim for automatic unfair dismissal on the basis that he took steps to protect himself in circumstances of serious and imminent danger.
In Preen v. Coolink Ltd and Mullins (ET 1403451/2020), the employee sent a message to his employer (after the U.K. government instructed the public not to travel to work unless their work could not be done from home) that he would stay at home unless a call out was urgent or essential in which case he would come in to assist. The following day, the employee was told he would be made redundant. The ET found that the real reason for the dismissal was that the employee had brought health and safety concerns to the employer’s attention. As such, the employee’s claim for automatic unfair dismissal was upheld.
Although the above are first instance decisions which are not binding on higher courts, they give a flavour of how the ETs are currently dealing with COVID-19 related employment claims. As can be seen, each case will turn on its facts but to reduce their exposure to such claims, employers should ensure that they have robust COVID-19 practices in place and discuss with employees any related concerns they may have.