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As we continue through the pandemic, there appears to be more cause for optimism. Roads and streets are noticeably busier, with more and more businesses opening. Vaccination programmes are in full swing. Hopefully, the sight of deserted high streets remains a distant memory that we never revisit. As things continue moving towards more normal times, businesses will have more need for staffing.
Employers may face resistance from staff about returning to work. Whether that be for family reasons, health reasons pertaining to the individual, or perhaps wider health and safety concerns about exposure to COVID, employers must be alert to such issues.
One area of law which is relevant relates to dismissal (or being subjected to a detriment) for certain health and safety matters. Sections 44 and 100 of the Employment Rights Act 1996 provide protection for employees who do certain things relating to health and safety. For example, an employee is protected if, in circumstances which the employee reasonably believed to present serious and imminent danger, the employee took (or proposed to take) appropriate steps to protect himself or others from the danger. Any employee who took (or proposed to take) such appropriate steps, and was dismissed because of that, is treated as having been automatically unfairly dismissed. Note that this type of claim is similar to whistleblowing claims in that the employee does not require the usual 2 years’ continuous employment to claim. It can be brought by short service employees too. While the unfair dismissal rights only apply to employees, the right not to be subjected to detriments was recently extended to cover workers as well as employees.
The Watford Employment Tribunal recently issued its judgment in such a case, Mr Accattatis v Fortuna Group (London) Limited. The claimant, Mr Accattatis, was employed by Fortuna as a sales and project marketing co-ordinator. Fortuna sells PPE including face masks, gels, gloves and wipes. At the onset of the pandemic, they were extremely busy for obvious reasons. The claimant lived 5 miles from the workplace and travelled by bus. The Managing Director sent various emails to staff as the pandemic unfolded into lockdown. He detailed various measures which the company had taken, but explained that they would remain open for business due to their key frontline role in providing PPE. Mr Accattatis asked about working from home but was told that this was not an option owing to the need to utilise software and deliveries on site. He was reminded that staff wishing to self-isolate could take holidays or unpaid leave.
Mr Accattatis developed COVID symptoms and was absent from 30 March for 3 weeks, with various isolation notes submitted. He asked his employer to furlough him, but this was declined because there was still work available for him. The claimant emailed again stating that he did not feel comfortable using public transport and coming to the office during lockdown. He again suggested furlough or home working. The respondent declined and explained that the claimant needed a sick note (which was duly produced). Nonetheless, the claimant continued to press for furlough going as far as to tell his employer that he had phoned the HMRC helpline and been told that he was eligible.
Twenty minutes later, the claimant was sent an email confirming his dismissal. The reason was stated as “general ongoing failure on your part over a period of many months to support and comply fully with our company policies”. He had less than 2 years’ service at this point.
The Tribunal accepted that, objectively, the onset of COVID and the risk of transmission amounted to circumstances which an employee could reasonably have believed were serious and imminent. The question, however, was whether the claimant subjectively believed there to be serious and imminent danger. The highest point of the claimant’s argument here was the point that explored working from home, and his statement that he did not feel comfortable using public transport after 3 weeks of struggling with symptoms. The Tribunal accepted that the claimant believed there to be serious and imminent danger. The next question was whether the claimant took, or proposed to take, appropriate steps to protects himself or others. The Tribunal found that the claimant did not take such appropriate steps: it had already been agreed by the company that staff could use holidays or take unpaid leave to self-isolate. The claimant could have taken that step to protect himself from danger. In essence, his demands for furlough or home working were not appropriate steps to protect himself from the danger. His claim was dismissed.
This judgment is of course fact-specific and does not bind other Tribunals. However, it serves as a useful illustration as to how a Tribunal might approach the issue in such cases. If you require any advice about employees returning to work during the pandemic, please contact Blackadders’ Employment Team working in Perth, Dundee, Aberdeen, Edinburgh and Glasgow.
Jack Boyle, Director
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