I have for some time been predicting that there would be a large surge in employment tribunal claims that are related to Covid-19 and especially those which are specifically linked to health and safety and concerns relating to a return to a safe working environment.
Employees who are dismissed because they have raised health and safety concerns or who have blown the whistle genuinely believing that their employer is in breach of a legal obligations have the right to claim automatic unfair dismissal. The beauty of this from an employee’s perspective (and from which employers need to be aware of), is that they do not need to have two years’ continuous service as they can pursue such claims from day one of their employment.
Two recent cases that have recently entered the employment tribunal arena relate to an employee’s failure to wear a face mask and the other involving a refusal to attend work.
These cases are also not binding on any future authorities as they have been decided by the employment tribunal at first instance. Whether these decisions are appealed remains to be seen.
Case Number 1 – Employee’s refusal to wear a face covering or face mask.
In this case the Claimant was a polish lorry driver who was required to make deliveries to his employer’s clients. One of those clients was Tate & Lyle who had a mandatory policy and requirement for all visitors attending their sites to wear a facemask. Approximately 90% of the driving was undertaken by the Claimant from the Respondent employer’s Basildon site to Tate & Lyle’s Thames Refinery site.
Even though Tate & Lyle provided the Claimant with a face mask he refused to wear it saying that he was in his cab and didn’t have to.
The Respondent employer also had a staff handbook which made it clear that ‘The Company’s success is built on its relationship with its clients/suppliers. You should therefore be courteous and pleasant to clients/suppliers at all times. Rudeness or off-hand treatment of clients/suppliers will not be tolerated, however badly the client/supplier may have behaved’.
In addition, the Driver Handbook stated that ‘customer instruction regarding PPE requirement must be followed’.
Unfortunately, the Claimant refused repeated requests from Tate & Lyle to wear a facemask and as a consequence was banned from attending their premises.
The Respondent employer then implemented its internal disciplinary process and treated the matter as gross misconduct. The Claimant failed to show any remorse or to show that he was sorry for his refusal to adhere to Tate & Lyle’s requirements.
At the end of the disciplinary process, the Respondent employer concluded that they had no trust in the Claimant not to do the same again. It believed that the Claimant’s behaviour had undermined its relationship with Tate & Lyle and that any similar refusal to wear a face mask could undermine future relationships with its clients. On this basis the Claimant was summarily dismissed for gross misconduct.
The Respondent employer at the hearing, pleaded in the alternative that it dismissed the Claimant because of third-party pressure which amounted to ‘Some other substantial reason’.
The Employment Tribunal held that the decision to dismiss fell within the band of reasonable responses and that the decision to summarily dismiss in the circumstances was fair. The Employment Tribunal did note that another employer may have reached a different conclusion , but also noted the difficulty that the Respondent employer would face as the Claimant had been banned from Tate & Lyle’s site.
Kubilius -v- Kent Foods Limited Case Number: 3201960/2020
Case Number 2 – Refusal to attend work.
Here, the Claimant refused to attend work until lockdown restrictions had been eased. He was concerned that if he caught coronavirus at work it could place his vulnerable children at risk. This refusal to attend work happened in May 2020 and at a time when the Claimant had 9 months’ continuous service.
The workspace at the Respondent employer’s premises was described as half the size of a football pitch with typically 5 people working on the floor at any given time.
The Claimant had to fulfil two legal tests. One, that he had a reasonable belief that his workplace posed a serious and imminent threat to him and others. Two, that he was dismissed for exercising his right to leave the workplace.
The Employment Tribunal found in favour of the Respondent employer on the basis that the Claimant had failed to provide any evidence to support his belief that the workplace placed him and others in imminent danger. Crucially the Claimant failed to mention any specific threats in the workplace and had accepted that Covid safe measures had complied with Government Guidance that was relevant at that time.
Other persuasive factors were that the Claimant during his evidence accepted that he drove a friend to hospital during a time that he had been advised to self-isolate. In addition, he spent time working in a pub during the pandemic and that such actions were not consistent with perceiving a serious and imminent threat in the workplace.
The Claimant therefore failed in his claim for automatic unfair dismissal. However, if he had two years’ continuous service he may well have succeeded in a claim for ordinary unfair dismissal on the basis that the Respondent employer had failed to follow a fair process.
Rodgers -v- Leeds Laser Cutting Limited Case Number: 1803829/2020
Although the Claimants in these two cases lost their claims, it is not indicative that employers will always win such challenges. These cases are fact specific and there was a strong reliance on written policies and procedures.
It is always recommended that employers have clear, concise written policies that are communicated to their employees and are backed up where necessary with training. It is also recommended that employers carry out a risk assessment to ensure that workplaces are safe and Covid-19 secure. These practices will carry a lot of weight in helping to defeat future employment tribunal claims that are brought along similar lines.
As always is also advisable to seek timely legal advice on these challenging issues which relate to Covid-19 and the workplace, as such issues will tend to focus on the individual employee’s experience and will be fact specific.
If you have any concerns or questions relating to Covid-19 and the workplace then contact Steven Eckett, Partner and Head of Employment at Meaby & Co LLP.
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