30th June 2021

Employee unfairly dismissed for refusing to return to work after lockdown

In Gibson v Lothian Leisurean employee was unfairly dismissed after being selected for redundancy having raised health and safety concerns.

The facts
The Claimant, Mr Gibson, worked as a chef at the Sun Inn in Midlothian for a little over one year. His father, who he lived with, suffered from various disabilities including a brain tumour, Colitis and Addison’s disease. Mr Gibson was furloughed in March 2020 and up to this point believed he had been a good employee with a good relationship with his employer.

At the beginning of April, the Sun Inn were considering reopening as the end of lockdown loomed and wanted Mr Gibson to “come in and help out a bit”. Mr Gibson raised his concerns about coming back to work and the risks of catching Covid-19 as his father was particularly vulnerable. He also alleged the Sun Inn provided no PPE and had no intention of making the working environment safe for colleagues. The response from Mr Gibson’s employer was that he was to “shut up and get on with it.”

Mr Gibson received a text message from his employer at the end of May stating he was dismissed due to a change in the day to day running of the business and new requirements for a smaller team. He then brought a claim in the Employment Tribunal for unfair dismissal, notice pay and arrears of pay.

What happened?
Mr Gibson lacked two years’ continuous service to bring a claim of unfair dismissal. However, he argued the real reason he was dismissed was because he had raised health and safety concerns to his employer relating to the risks posed to his father. Health and safety dismissals are one of a number of reasons for dismissal where an employee does not require two years’ service to bring a claim.

Employees will be automatically unfairly dismissed where they reasonably believed there to be a serious and imminent danger and took appropriate steps to protect themselves or others from danger and are dismissed as a result. Crucially, employees only need to hold a “reasonable belief” and do not need to show there actually was an imminent danger.

The Employment Tribunal found that Mr Gibson was dismissed or selected for redundancy because in circumstances of danger which he reasonably believed to be serious and imminent he took steps to protect his father. The Employment Tribunal awarded him compensation of £14,500 for the unfair dismissal and the minimum basic award in health and safety dismissals of £6,562.

Top Tips
It is difficult for employers in this situation and each case should be tackled differently. If Mr Gibson had been consulted in his return to work, this may have never resulted in a claim. Following the below tips will certainly reduce the risk of any claims:

  • Keep a clear paper trail of the health and safety measures implemented and update your health and safety policy accordingly. Remember, an employer must have a health and safety policy if it employs five people or more;
  • Avoid any risk of a constructive dismissal or unfair dismissal claim when disciplining or dismissing staff who say they cannot work due to COVID-19 to by taking a sympathetic approach to their individual circumstances
  • Read the ACAS Top Tips and ACAS Guidance on returning to the workplace

If you need any advice regarding employees raising health and safety concerns at work, please get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Duncan Milne, Solicitor
Employment Law
Blackadders LLP
@EmpLawyerDunc

www.blackadders.co.uk

 

 

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