Employment Law Case Update: Covid-19 and Unfair Dismissal

Covid-19 has given employers many different complications over the last 18 months and we are now starting to see Employment Tribunal claims arise from the decisions made during the pandemic.  Our Employment Law team today reviews the case of Mr C Montanaro v Lansafe Limited 2021, in which an employee who refused to return to the UK from Italy in the early days of the Covid-19 pandemic was dismissed only by letter… sent to his UK address.

Mr Montanaro was employed by Lansafe Limited in February 2020.  In early March 2020, he took two days off to attend his sister’s wedding in Italy, having genuinely believed he had been granted leave. 

While Mr Montanaro was in Italy, the country went into lockdown and the UK Government published guidance instructing travellers entering the UK from Italy to self-isolate for 14 days. Mr Montanaro contacted his director, Mr Roby, asking if he should return to the UK. He was told to keep his mobile and laptop on and to await further instructions, which never came. Mr Montanaro consequently did not return to the UK and instead continued to perform work for the company’s clients remotely from his home in Italy.

Meanwhile, the company prepared a letter to Mr Montanaro informing him that he was being dismissed for gross misconduct. However, Mr Montanaro did not see this letter, as it was sent to his London address, where the company knew he would not be. 

Mr Montanaro continued to work remotely and to send the company and Mr Roby updates but he received no response. On 1 April, he received an email with his P45 and final payment, which alerted him to the fact that he had been dismissed. His final payment only included pay for dates up until 6 March, despite that fact that he had been working remotely past this date.

Mr Montanaro claimed he was automatically unfairly dismissed for taking appropriate steps to protect himself from danger which he reasonably believed to be serious or imminent.

The company argued before the Employment Tribunal (ET) that Mr Montanaro had been dismissed for gross misconduct because he took unauthorised absence. The ET rejected this argument, finding the company’s evidence “not credible”.

The ET was satisfied that Mr Montanaro reasonably considered the danger posed by Covid-19 to be serious and imminent and that Mr Montanaro took appropriate steps by seeking advice from the company, complying with the instruction to keep his mobile and laptop on, and by continuing to work remotely. The ET concluded that Mr Montanaro was dismissed because he “communicated the difficulties with Covid” to the company and “proposed to work remotely in Italy until the circumstances changed”. Mr Montanaro therefore succeeded in his claim for automatic unfair dismissal and was awarded £3,346.98.

This case adds to the growing case law involving health and safety concerns related to Covid-19. It is not binding on future tribunal decisions, but does indicate that decisions will be fact sensitive.

This case also reminds employers that they should still exercise caution when dismissing employees with less than two years’ service, especially if the employee has raised concerns regarding health and safety. It was relevant to the tribunal’s decision that the company was unable to produce any credible evidence of the reason for dismissal; employers should therefore ensure that the reason for a dismissal is well documented and justified. 

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.