Employment Tribunal rulings on Covid-19 issues – what can we learn?
02 September 2021
The pandemic required many employers to make difficult decisions in unprecedented and rapidly evolving circumstances, giving rise to concerns this would lead to a deluge of Employment Tribunal claims. We look at some of the early cases to see what lessons can be learnt when planning for a return to work.
Employment Tribunal (ET) decisions are starting to be published on key issues such as employees refusing to work, compliance with health and safety rules and the calculation of payments under the furlough scheme. We summarise some of the more instructive findings below and consider what conclusions can be drawn from them.
Employees refusing to work
Employers who were able to continue operating during lockdowns found that some of their employees refused to attend work. Employees have statutory rights to stay away from work or take other appropriate steps to protect themselves (or others) where they reasonably believe there are circumstances of serious and imminent danger. It has been unclear how ETs would interpret this in the context of the Covid-19 pandemic.
The case of Accattatis v Fortuna Group involved a sales and project marketing co-ordinator who requested to be furloughed or to be allowed to work from home, given his concerns about commuting and attending the workplace. The employer offered annual leave instead. The ET found that the employee could not work from home and that he could not simply refuse to attend the workplace due to the pandemic. Contrast Montanaro v Lansafe Ltd, in which an IT professional found himself in Italy on annual leave when lockdown was announced and decided to remain there. In finding the employer’s decision to dismiss him unfair, the ET took the view that the threat of coronavirus itself was a serious and imminent danger and that the employee was taking appropriate steps to protect himself by working remotely from Italy.
In Rodgers v Leeds Laser Cutting Ltd, however, the ET observed that if the virus was itself capable of creating circumstances of serious and imminent danger, this would result in the law protecting any refusal to work in any circumstances simply by virtue of the pandemic. The employer in that case had implemented the government’s workplace safety guidance and the employee had not raised any particular concerns. The ET concluded that the employee had no right to absent himself from work.
Firm conclusions cannot be drawn from this small handful of decisions, but it seems likely that ETs will generally follow the approach in Rodgers and require some evidence that the employer is failing to take proper precautions or other evidence of particular danger before an employee can be justified in refusing to attend work.
The way in which the employer and employee have behaved also makes a difference. In Montanaro, the employer gave the employee no advice on whether he should stay in Italy or return to the UK and behaved inappropriately, for example by sending a dismissal letter to his UK address despite knowing he was in Italy. In Rodgers, the employee left the workplace with a casual “see you later mate” and was caught flouting self-isolation rules outside of work while trying to claim that he was justified in not attending work.
Some employees have not refused to attend work altogether but have declined to carry out certain tasks. In one such case, dismissing an employee for refusing to attend the home of his self-isolating manager to deliver equipment was found to be automatically unfair where the employee was taking appropriate steps to protect himself.
Time has moved on since these cases, with most people now being vaccinated and the government recently lifting most restrictions and encouraging a return to work. Nonetheless, the potential certainly remains for employees to meet the “serious and imminent danger” test, such as where their employer has demonstrably failed to put in place suitable health and safety measures.
Dismissal for failure to comply with health and safety rules
While some employees have objected to attending the workplace due to their concerns, others have refused to comply with their employer’s workplace safety guidance. Kubilius v Kent Foods Ltd concerned a delivery driver who was dismissed for failing to wear a mask while in his lorry cab at a client site. The ET found the dismissal to be fair despite the official guidance around mask wearing at the time having been optional.
This case supports an employer’s right to enforce its own health and safety rules even where they go beyond government guidance, albeit the ET focused more on the disciplinary process and the employee’s ban from the client site, meaning he could no longer perform his job, than the instruction to wear a mask. There will still be cases where dismissing an employee for a failure to wear a mask would constitute an unfair dismissal, for example if a medical exemption applies, but employers will be in a stronger position to enforce requirements that have been identified as control measures in their health and safety risk assessment.
The clinically vulnerable
One of the most difficult issues for employers to get right has been the protection of people who are clinically vulnerable. There have only been a few decisions on this, but it appears that ETs are backing a cautious approach to those whose health is most at stake.
In Prosser v Community Gateway Association Ltd, the ET found there was no unlawful discrimination against a pregnant worker when she was sent home at the beginning of the pandemic and not allowed to return until health and safety measures had been put in place. The ET went as far as to commend the employer on doing everything it could to keep the employee and her baby safe during the pandemic, including paying her beyond her contractual entitlement.
In Gibson v Lothian Leisure, the ET found that a chef was automatically unfairly dismissed when he refused to return to work having raised concerns about the lack of any health and safety measures and the risk of infecting his clinically extremely vulnerable father. The employer did not submit a defence or attend the hearing, so the ET heard no evidence to dispute the employee’s account that there were no precautions and he was told to just “shut up and get on with it.” This case shows that an employee’s right to protect “other people” against danger can, at least in the circumstances of the pandemic, extend to family members at home - previous cases had concerned the protection of customers. Note, however, that at the time of this case the shielding guidance was in place for the clinically extremely vulnerable and the vaccine programme was not yet underway. It would not necessarily be reasonable for employees to take similar action to protect their clinically extremely vulnerable relatives today.
Missing the deadline for bringing claims
Claimants have largely found ETs to be unsympathetic when pleading the circumstances of the pandemic as the reason for their failure to present their claim in time. Arguments such as a mistaken belief the ETs were closed due to the pandemic and living on a boat in lockdown with intermittent wifi have been dismissed. A claimant caring for his elderly parents during a period where his father had passed away and he was working additional hours was a rare situation in which it was not reasonably practicable for him to submit his claim on time.
With the government guidance on the furlough scheme having been updated constantly, it is unsurprising to see a considerable number of ET decisions arising from it.
While many businesses chose to make use of the scheme, the guidance has always been clear that this was a decision for the employer and there was no legal “right” to be furloughed. In a string of decisions such as Woods v Hawkes Ltd and Kapetanakis v Historical Souvenirs Ltd, ETs have unsurprisingly confirmed this to be case despite employees attempting to argue they should have been furloughed instead of being asked to work.
In Mhindurwa v Lovingangels Care Ltd, however, the ET found that a failure to consider the use of the furlough scheme was enough to make a dismissal for redundancy unfair. The employee had been made redundant in July 2020 after the employer had seen a reduction in demand for live-in care work due to the pandemic. The ET said that a reasonable employer would have considered whether the use of the furlough scheme could have avoided the need for redundancy. This case has generated significant interest, but employers who implemented redundancies despite furlough being available do not necessarily need to be concerned about facing similar claims (which in any event could now be out of time). At most, a consideration using of the furlough scheme would have been required. This is borne out by another ET decision that a dismissal was not unfair despite the fact the employer could have continued furloughing the employee for longer.
From our review of ET decisions about the furlough scheme, it is all too apparent that both employers and employees struggled to perform the necessary calculations when claiming furlough. Some employees appear to have taken the furlough scheme’s promise of 80% of their wages at literal face value and expected to receive 80% of whatever their last pay packet was before the scheme. ET judgments are littered with phrases such as “the Tribunal doing the best it can” to recalculate what employees were owed at the relevant time.
Some employers seem to have misunderstood the furlough scheme rules and expected employees to continue to carry out some work despite being on furlough. In one such case, where the employee refused to help with a salon refurbishment, the employer chose not to pay the employee (or claim their wages from the government) for the month in question. Unsurprisingly, the ET found this to be an unlawful deduction from wages.
ETs have also made clear in several cases that furlough constitutes a contractual variation which remains in force irrespective of whether the employer has claimed for the employee under the scheme. This has led to awards of furlough payments to employees in situations where the employer had not recouped the money from the scheme.
ETs are in the difficult position of revisiting the circumstances of the first year of the pandemic and the guidance applicable at the time. They are recognising the difficult circumstances in which employers were forced to operate, and ET decisions generally appear to be well balanced while strongly influenced by whether the employer and employee behaved reasonably or unreasonably overall.
Most of the early cases have focused on monetary claims such as breach of contract and pay disputes, with fewer health and safety decisions to date than expected. The ETs are currently dealing with a large backlog of cases, however, so we can expect more pandemic cases filtering through to complete the picture. Another factor is that some employees may be pursuing Covid-19 personal injury claims, which are heard in the civil courts rather than the ET. The central issue in such cases is likely to be whether the employer acted negligently in a way that caused or materially contributed to the employee contracting Covid-19. (See our FAQs on managing a safe return to work for more on this.)
For employers facilitating a return to work, the most important lessons from the ET decisions so far are to consult with staff, update risk assessments, implement suitable Covid safety measures, and ensure these are communicated to staff and properly enforced. While the government has now lifted most legal restrictions, the pandemic is continuing. ETs have consistently found in favour of claimants where the employer has not taken appropriate steps to protect staff. It is too early to draw firm conclusions regarding the approach ETs will take to disciplining employees who have refused to return to work, but clearly employers would be well advised to deal with such situations on an individual basis.
Finally, it is important to keep in mind that the ET decisions highlighted above mainly concerned events during the first few months of the pandemic, since when the circumstances and government guidance have evolved considerably. ETs will assess any case based on the prevailing Covid situation and guidance in place at the relevant time, which means that cases on similar facts to some of the decisions discussed above could be decided differently today.
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