COVID-19: unfair health and safety-related dismissal
Gibson v Lothian Leisure
An employee was unfairly dismissed for raising health and safety issues about lack of PPE and other workplace COVID-secure measures.
Under s. 44 and 100 of the Employment Rights Act 1996 (ERA 1996), employees are protected from being subjected to a detriment or being dismissed for exercising their right to leave their workplace. To gain such protection, employees must have a ‘reasonable belief’ that their workplace poses a serious or imminent threat to them or to others. This is a Day 1 right and employees don’t need two years’ service to bring such a claim.
Mr Gibson a chef, was furloughed when the first national lockdown began. During his furlough and in the run-up to the end of lockdown, his employer asked him to come into work. Mr Gibson was worried about catching COVID-19 and passing it on to his father who was clinically vulnerable. When he raised concerns about the lack of PPE and a non-secure COVID-19 working environment, his employer summarily dismissed him via text message, with no notice or accrued holiday pay. He brought various tribunal claims, among them one for automatic unfair dismissal.
His claims succeeded.
The tribunal was satisfied that Mr Gibson’s actions meet the requirements of ERA 1996, s. 100(1)(e). The circumstance of danger was the growing prevalence of infections by COVID-19 and the potential significant harm that could be done to his father should he contract the virus. Mr Gibson reasonably believed this to be ‘serious and imminent’, hence raising the issue of PPE. The raising of that issue amounted to an appropriate step to protect his father from the danger. Mr Gibson was awarded over £21,000 for the unfair dismissal.
Link to judgment: https://www.bailii.org/uk/cases/UKET/2021/4105009_2020.html
There is no qualifying period of employment to benefit from these protections and compensation for a successful claim is uncapped. Existing case law suggests that these concepts are broadly interpreted. The ‘danger’ does not have to be in the workplace itself. Whether an employee’s belief is ‘reasonable’ will depend on factors such as:
- the extent to which the employer has assessed risks and followed guidance
- whether any further safeguards such as PPE can be provided, or other mitigation measures taken
- whether the work means that certain safeguards cannot be taken, and
- the vulnerability of the employee
This decision can be contrasted with that of Rodgers v Leeds Laser Cutting where an employee told his manager that he wouldn’t return to work until after lockdown because he feared he would infect his clinically vulnerable children with COVID-19. The tribunal found that the employee did not have a reasonable belief in serious and imminent workplace danger on the facts. The employer had implemented the precautions recommended by government advice at the relevant time and the employee had not raised any concerns about the workplace measures nor taken any steps to avert danger before absenting himself.