Is dismissal for staying away from work due to COVID concerns automatically unfair?
In the first case of which we are aware, an Employment Tribunal (ET) has considered whether dismissing an employee for staying away from the workplace due to COVID concerns was automatically unfair.
Mr R texted his manager in March 2020 to confirm that he had “no alternative but to stay off work until the lockdown has eased” due to his concerns about infecting his vulnerable children. A month later, he was dismissed. Mr R did not have two years’ service and was therefore unable to bring a claim in the ET for ordinary unfair dismissal.
Automatic unfair dismissal claim
A dismissal is automatically unfair where the reason for a dismissal is that an employee leaves or refuses to return to a workplace in circumstances of danger which the employee reasonably believes to be serious and imminent and which he could not reasonably have been expected to avert. An employee does not need 2 years’ service to issue this claim. Mr R relied on this provision to bring a claim in the ET for automatic unfair dismissal.
The ET found in this case that Mr R had not shown that he had a reasonable belief in serious and imminent workplace danger. It accepted that he had concerns about the virus in general and concerns for his family. The ET found that Mr R considered there were circumstances of serious and imminent danger all around. Despite this, however, Mr R had transported a friend to hospital during a period when he had been advised to self-isolate.
The ET found that Mr R’s decision to stay off work was not linked to his working conditions. When he told his employer about his intention to stay away from work, he did not make any reference to his working conditions. He intended to remain absent until the national lockdown was over. In addition, the employer had put in place measures to reduce the risk of COVID transmission, and it was not hard to socially distance in the workplace. The ET found that Mr R could reasonably have been expected to avert any dangers by socially distancing within the workplace, using additional PPE if he wished and regularly washing/sanitising his hands. The ET was not satisfied that it was appropriate for Mr R to absent himself from work entirely. His claim therefore failed.
This decision is at Tribunal level and therefore not binding on other Tribunals. Importantly, this case is not precedent for a principle that a dismissal for refusing to attend work in the context of the pandemic will never amount to an automatic unfair dismissal. The ET rejected the suggestion that the automatic unfair dismissal provisions “cannot apply to situations arising from the pandemic as a matter of principle”. Each case will depend on the specific facts. In addition, dismissal of an employee with more than 2 years’ service may lead to an allegation of ordinary unfair dismissal. Employers considering dismissal should seek advice.
However, the ET specifically rejected an argument that the very existence of the virus creates circumstances of serious and imminent danger, which cannot be averted, regardless of safety precautions that an employer has in place. It found that accepting this principle could lead an employee to refuse to work in any circumstances simply by virtue of the pandemic.
This case is a further reminder to employers of the importance of putting in place measures to ensure that the workplace is COVID secure and communicating those measures effectively to employees. Employers should keep up to date with Government guidance as part of that process.
23 April 2021
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