“It’s too dangerous for me to come to work”
Health & Safety claims and the “Covid-19” effect
Until recently automatic unfair dismissal claims arising from concerns about health and safety were regarded as a bit ‘niche’. However, as with many things in these Covid times, those little used provisions of the Employment Rights Act 1996 have reared their heads and we are seeing an increasing number of claims of this nature coming through the tribunals. This is only likely to increase because an equivalent right (not to be subjected to a detriment relating to health and safety) was extended to “workers” on 31 May 2021.
Under section 100 of the Employment Rights Act 1996 (ERA), an employee will be automatically unfairly dismissed (without the need for a qualifying period of two years) if they are dismissed in circumstances where they reasonably believe that there is a serious and imminent danger and the reason for their dismissal is that they have:
• taken (or proposed to take) appropriate steps to protect themselves or others;
• left or refused to return to a place of work because of that serious and imminent danger.
In addition, it may also amount to automatic unfair dismissal if the employee is dismissed because they have raised issues connected with the workplace which they reasonably believed were harmful or potentially harmful to health and safety. This is very similar to whistleblowing but there is no requirement for public interest.
Where an employee has suffered a detriment as a result of taking the actions referred to above, they can also bring a claim under section 44 of the ERA. Since the protection has been extended to workers, any detriment (including termination) suffered by a worker resulting from these actions, can also result in litigation.
It is easy to see why these types of claims have become more popular since the advent of Covid-19. It is, therefore, important to bear these issues in mind when dealing with an employee who has expressed concerns about being in the workplace or carrying out certain work as a result of the pandemic. However, employers may be able to defend such claims more easily if they have taken steps to make their workplaces Covid-secure, and act reasonably when concerns are raised. Recent case law demonstrates this point.
In Accattatis v Fortuna Group (London) Ltd it was held by an employment tribunal that Mr Accattatis, who had under two years’ service and so could not bring ordinary unfair dismissal claims, was not automatically unfairly dismissed for expressing concerns about commuting and working in the office during lockdown. Although Fortuna Group refused to furlough Mr Accattatis, despite his repeated requests, it did allow him to remain at home and, as he could not work from home, had suggested unpaid leave or holiday. Mr Accattatis demanded full pay or furlough and was subsequently dismissed. His claim for automatic unfair dismissal failed as the tribunal believed that the demands for full pay or furlough were not “appropriate steps” to protect himself, given the fact that Fortuna Group had accommodated his concerns about the serious and imminent danger by allowing him to remain at home.
Another case where the employee failed to show automatic unfair dismissal in similar circumstances was Rodgers v Leeds Laser Cutting Limited. In this case, Mr Rodgers wanted to stay away from the workplace because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with Covid-19. He was dismissed and brought claims for automatic unfair dismissal. Mr Rodgers was unable to establish a reasonable belief in serious and imminent workplace danger, particularly as the evidence showed that he had not raised any specific concerns regarding working conditions. Rather, he was concerned about the COVID-19 pandemic generally and the fact that one of his children suffered from sickle cell anaemia. The evidence showed that the employer had already taken measures to limit the risk of exposure to COVID-19. In addition, Mr Gibson had not helped his case; the evidence showed that, despite his concerns about the pandemic and being advised to self-isolate, he had driven a friend to hospital and had spent a period of time working in a pub!
These cases demonstrate that the pandemic is not enough on its own to enable employees to hold their employers to ransom, as long as the employer does allow the employee to take reasonable and appropriate steps to protect themselves and puts in place appropriate Covid-secure measures.
However, another recent case, Gibson v Lothian Leisure demonstrates a situation where the employer did end up on the wrong side of the line. Mr Gibson, who worked as a chef, was asked to undertake some work whilst being furloughed. He feared that his return to work may cause him to pass on Covid-19 to his clinically vulnerable father, and raised concerns that Lothian Leisure was failing to provide PPE or taking other Covid-secure precautions. Mr Gibson was told to “shut up and get on with it” and then dismissed by text message without notice pay. Perhaps unsurprisingly, the employment tribunal held that Mr Gibson had reasonably believed that there was a serious and imminent danger to his father due to the growing prevalence of Covid-19 and the potential significant harm to his father if he contracted the virus. As the evidence showed that raising these concerns had led to his dismissal, Mr Gibson had been automatically unfairly dismissed.
These contrasting cases show that there are a wide range of circumstances where the protection may apply and each case will need to be looked at on its own facts. The key message, therefore, is to maintain Covid-secure measures in the workplace and be aware of the legal risks in situations where staff raise concerns about their safety, or the safety of others.