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Health and Safety Dismissal & COVID-19

Posted on: Jul 21,2021

Health and Safety Dismissals

You are protected from being subjected to a detriment or dismissal for exercising your right to leave the workplace where you have a reasonable belief that your workplace poses a serious or imminent threat to you or others [ sections 44 and 100 Employment Rights Act 1996 (ERA 1996)]. This is a day one right and you don’t need two years’ service to bring a claim in the Employment Tribunal, additionally compensation is not capped.

See Health and Safety dismissal, How to fight a health and safety dismissal, How to complain about health and safety at work

In Ben Gibson v Lothian Leisure [2021] the Employment Tribunal agreed that Ben had been automatically unfairly dismissed for raising health and safety issues about lack of PPE and other workplace COVID-secure measures. Ben is a chef and was furloughed during the first  national lockdown. During his furlough and in the run-up to the end of lockdown, Lothian Leisure asked him to come into work. Ben was worried about catching COVID-19 and passing it on to his father who is clinically vulnerable. When he raised concerns about the lack of PPE and a non-secure COVID-19 working environment, Lothian Leisure summarily dismissed him by text message, with no notice or accrued holiday pay. Ben sued them and was represented by his father in the Employment Tribunal.

Among other things, Ben argued that his dismissal was automatically unfair under section 100(1)(e) ERA 1996 which says that it is automatically unfair to dismiss an employee….;

in circumstances of danger which the employee reasonably believed to serious and imminent he took (or proposed to take) appropriate steps to protect himself or other persons from the danger

 The tribunal considered whether the reason for dismissal was because his workplace posed a serious and imminent danger to him due to COVID-19 and agreed. The circumstance of danger was the growing prevalence of infections by COVID-19 and the potential significant harm that could be done to his father should he contract the virus. Ben reasonably believed this to be ‘serious and imminent’, hence raising the issue of PPE. The raising of that issue amounted to an appropriate step to protect his father from the danger. Ben was awarded over £21,000 for automatically unfair dismissal.

In the next cases, Francesco and Mr Rodgers were not so lucky.

In Francesco Accattatis v Fortuna Group (London) Limited [2021], Francesco was dismissed after expressing concerns about commuting during COVID-19. His employer Fortuna Group

sells and distributes PPE. His role involved accepting daily deliveries, entering details onto the employer’s system and photographing/organising promotional materials. He was a key worker and Fortuna Group remained open during the first lockdown. In March and April 2020, his requests to work from home and to be placed on furlough, due to anxiety about using public transport and working in the office, were denied due to the nature of his work, which was not possible to do from home, and the employer’s business needs. He was told he could take paid holiday leave or unpaid leave if he wished to stay at home.

Francesco declined and, after further requests to be furloughed, he was dismissed.

Francesco lost his case which he brought under section 100(1)(e)  ERA 1996.

The Employment Tribunal said that the pandemic was evolving and not much is known about the virus, but they were prepared to accept that Francesco had a reasonable belief in serious and imminent danger. BUT. He  had not taken appropriate steps to protect himself from the danger. His demands to be furloughed (which he didn’t qualify for) or working from home (which weren’t feasible) did not qualify as appropriate steps.

In D Rodgers v Leeds Laser Cutting [2021], following the start of the first national lockdown, Leeds Laser Cutting carried out a risk assessment and put in place various safety measures to enable it to continue operating, including staggered start/finish times, providing masks and strict social distancing measures. Two days later, Mr Rodgers told his manager that he’d be staying away from work ‘until the lockdown has eased’ because of his concerns about infecting his vulnerable children. There was no contact between Leeds Laser Cutting and Mr Rodgers until his dismissal a month later. Mr Rodgers sued for automatically unfair dismissal in the Employment Tribunal relying on sections 100(1)(d) & (e) ERA 1996.

The tribunal accepted that Mr Rodgers had significant concerns about COVID-19 generally, but his concerns were not enough to bring him within the scope of section 100 ERA because;

  • His communication with his manager had not mentioned any workplace dangers and he could not show that there was in fact any such danger. LLC had implemented the recommended government safety guidance.
  • Despite his concerns about COVID-19, Mr Rodgers had breached self-isolation guidelines to drive a friend to hospital.
  • Mr Rodgers had not taken any steps to avert the alleged danger or raised concerns with his manager before leaving work.

For these reasons, the tribunal said that he did not have a reasonable belief in serious and imminent workplace danger on the facts. His employer had implemented the precautions recommended by government advice and Mr Rodgers had not raised any concerns about the workplace measures nor taken any steps to avert danger before taking unauthorised absence.

Health and Safety Dismissals – Lessons

Each case is dependent on its own facts.

It is not enough to complain about returning to work during COVID.  You must prove that  the risk is serious and imminent despite anything you or your employer can do to reduce that risk.

The danger does not have to be in the workplace itself.

The existence of the COVID-19 virus is not enough and if your employer has implemented safety measures according to government guidelines, your claim may not be successful.

You must have evidence that you raised concerns with your employer, and nothing was done, or that what was done was inadequate.

Whether your belief that there is serious and imminent danger will depend on several factors for example;

  • the extent to which your employer has assessed risks and followed guidance
  • whether any further safeguards such as PPE can be provided, or other mitigation measures taken
  • whether the work means that certain safeguards cannot be taken, and
  • your own vulnerability

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