The claimant, Mr Gibson, worked as a chef in a restaurant owned by Lothian Leisure. The restaurant closed temporarily in March 2020 owing to the first Covid-19 lockdown and furloughed Mr Gibson. It asked Mr Gibson to return when it reopened. He was concerned about catching Covid-19 at work and passing it onto his clinically vulnerable father. When Mr Gibson raised concerns about the lack of PPE or other Covid-secure workplace precautions, his employer told him to 'shut up and get on with it.'
The Managing Director dismissed him by text, claiming that it would be running with a smaller team after the lockdown. Before he raised his concerns, Mr Gibson had been a successful and valued member of staff.
Sections 44 and 100 of the Employment Rights Act 1996 protect employees against detriment or dismissal where, in 'circumstances of danger' that the employee reasonably believes to be 'serious and imminent', they:
leave their workplace (or any part of it)
refuse to return to their workplace (or any part of it)
take appropriate steps to protect themselves or others from the danger.
The employment tribunal was satisfied that Mr Gibson's actions met the requirements of s.100 of the Employment Rights Act 1996. The 'circumstances of danger' were the growing prevalence of coronavirus infections and the potential significant harm that could be done to Mr Gibson's father if he contracted the virus from his son.
The tribunal awarded £23,625 for:
Automatic unfair dismissal for health and safety reasons.
Accrued but untaken holiday.
Unpaid furlough pay.
Unpaid notice pay.
How can you avoid the same mistake?
A dismissal that meets the requirements of s.100 of the Employment Rights Act 1996 is automatically unfair. Employees do not need the usual minimum two years' service to be able to bring a claim for automatic unfair dismissal. In addition, the statutory cap on the compensatory award does not apply where the automatic unfair reason for dismissal relates to health and safety.
Put in place robust safe-working measures that meet government guidelines applicable to your location and sector. Continue to monitor the latest best practice in your sector.
Listen to an employee's legitimate concerns about working arrangements and maintain an audit trail that demonstrates that you have done so.
There is no obligation on you to agree to an employee's request to be furloughed, nor are you expected to allow an employee to work from home when the role cannot realistically be performed remotely. If an employee simply refuses to return to work, consider other options before disciplinary action, including moving the employee to a suitable alternative role if one is available or seeking the employee's agreement to be put on unpaid leave.