Are decisions made by employers in the first wave of COVID-19 coming back to haunt them in the employment tribunal?

We haven’t experienced a pandemic like COVID-19 before and hence employers had to make snap decisions in vastly unchartered waters. How are those decisions holding up in the employment tribunals?

Danger Dismissal cases

  • employees with less than two years employment are making (uncapped) claims for automatic unfair dismissal under health & safety provisions.
  • employees must show that the reason for their dismissal was that ;-
    • they left or refused to return to work because they reasonably believed there was serious and imminent danger; or
    • in the face of such danger they took ‘appropriate steps’ to protect themselves or others from that danger
  • the majority of recent tribunals decisions seem to accept that COVID-19 represented a serious and imminent danger at the time of the first lockdown (supported by what the Government was saying at the time).
  • BUT tribunals determining claims for COVID-19 dismissals today may not deem the same level of danger to exist due to the availability of effective vaccinations and the related reduction in dead rates.

Recent Tribunal Decisions –  

  • FAIR – dismissal following refusal by the employer to allow furloughing or home working where there was work for the employee to do and where the work could not be done from home.
  • UNFAIR – dismissal following a refusal by employer to supply PPE as requested by the employee (fearful for his father who was isolating).
  • UNFAIR – dismissal following a refusal by an employee to attend their manager’s home address – where the manager was self-isolating due to COVID-19.
  • UNFAIR – dismissal following an employee working from abroad – not returning from holiday – fears about travel and COVID-19 – having requested guidance from employer.
  • FAIR – dismissal following refusal by employee to wear a PPE mask.
  • FAIR – dismissal following the refusal by a pregnant employee to work from home (following Government guidance on related health and safety risk).

Was a dismissal for redundancy fair where furlough was available?

Recent tribunal decisions seem to indicate such a dismissal can be FAIR, provided the employer gave consideration to putting the employee on furlough, consulted with the employee and had a good reason for not doing so e.g. cost of accruing holiday on furlough.  If there was unlikely to be future work for the employee this can also be a factor supporting the fairness of a dismissal.

Was a dismissal for refusal to accept a COVID-19 related pay related cut fair?

Many employers reduced pay temporarily in response to Covid, usually with consent from their employees.  Where consent was not given some employers dismissed the refusing employee.  Tribunals seem to be finding that, provided there was proper meaningful consultation process about the need for the proposed changes, then a dismissal for refusal to agree to such changes can be FAIR. Where discretionary schemes around bonus or commission were changed due to Covid the question is whether the employer exercised its discretion rationally and in good faith.

Warning

Every tribunal case is decided on its own facts and the decisions above are first instance only so subject to appeal and not binding on other tribunals.  Also, COVID-19 related dismissals today may not be determined in the same way as those cases referred to above (mainly because things have moved on in response to the pandemic).  The cases above are first instance decisions (and may be subject to appeal).

Help

I am currently supporting various employers dealing with defending COVID-19 related tribunal claims, redundancy planning due to the fast-approaching end of the furlough scheme, refusals to return to office working from home working and questions about the risks of implementing vaccination requirements in the workplace.  If you need employment law advice please contact me (David Greenhalgh) on 020 3603 2177.

Posted on Friday 10th September 2021

This article/blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

Are decisions made by employers in the first wave of COVID-19 coming back to haunt them in the employment tribunal?

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