Employment Law Case Update: Covid-19, Unfair Dismissal and Health and Safety

We are now beginning to see the influx of Employment Tribunal cases arising from Covid-19 concerns; today our Employment Law team reviews the case of Mr B Gibson v Lothian Leisure 2021 in which the Employment Tribunal (ET) considered whether an employer unfairly dismissed an employee who was reluctant to return to the workplace because he feared he might pass the coronavirus on to his vulnerable father.

Mr Gibson began working for his employer as a chef in February 2019. In March 2020, as a result of the national lockdown, his employer was forced to close and Mr Gibson was placed on furlough.

Mr Gibson’s father is clinically extremely vulnerable and has a number of health issues, including a brain tumour, colitis and Addison’s disease. He was therefore shielding during the lockdown.

In April 2020, the employer anticipated reopening and asked Mr Gibson to come in and help out with preparations. Mr Gibson was reluctant to return to work and told his employer that he was concerned about the possibility of contracting Covid-19 and passing it on to his father. The ET heard that the employer provided “no personal protective equipment for staff” and “had no intention of requiring staff to take precautions and create a Covid secure working environment”. In response, Mr Gibson was apparently told to “shut up and get on with it”.

On 30 May 2020, Mr Gibson’s employment was terminated without any process, via a text from a director. The text said that they were making changes to the running of the business and would be moving forward with a smaller team.

Mr Gibson filed a claim against his employer for unfair dismissal, notice pay, holiday pay, and unlawful deductions from wages.

Under section 100(1)(e) of the Employment Rights Act, a dismissal will be automatically unfair where the reason or principal reason for the dismissal was that the employee took appropriate steps to protect themselves from a danger which they reasonably believed to be serious and imminent. In these circumstances, an employee is protected from unfair dismissal even where they have less than two years’ service.

The ET was satisfied that Mr Gibson reasonably believed that the spread of the Covid-19 virus and the potential harm it could do to his father was a serious and imminent danger. Judge Brewer noted that until Mr Gibson raised his concerns, he had been a valued employee and had enjoyed a good relationship with his employer. The ET was satisfied that Mr Gibson had either been dismissed or made redundant because he took steps to protect his father from the serious and imminent threat of the coronavirus, and his claim for automatic unfair dismissal was successful.

The ET awarded Mr Gibson just over £21,000 for unfair dismissal. He also received amounts for notice pay and accrued holiday pay.

This case is another example of an employee successfully claiming that he was dismissed for raising health and safety concerns related to Covid-19. As employees continue to move back into the workplace, employers should listen to any health and safety concerns raised by employees and do what they can to address them. Employers are also reminded to exercise caution when taking any action against an employee who has raised a health and safety issue, even where that employee has less than two years’ service.

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.