COVID-19: dismissal of employee stuck abroad
Montanaro v Lansafe Ltd
The dismissal of an employee who remained abroad at the start of the pandemic was automatically unfair on health and safety grounds.
Section 100(1)(e) of the Employment rights Act 1996 provides that an employee is automatically unfairly dismissed if the reason (or, if more than one, the principal reason) for their dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or others from the danger.
Mr Montanaro was an IT engineer working for Lansafe in the UK and providing services to the firm’s client Boohoo. Before his dismissal, he’d travelled to Italy to attend his sister’s wedding, believing he had his employer’s permission. The evening he was due to return to the UK (9 March), Italy went into lockdown due to COVID-19. UK government advice required 14 days’ isolation on return from Italy. He immediately contacted his employer to tell them what had happened and asked for guidance on what he should do. Lansafe replied telling him to await further instructions. He didn’t board his scheduled flight home and continued to work remotely (having checked with Boohoo that this was OK, which it was). On 11 March Lansafe wrote to Mr Montanaro in London (despite knowing he was in Italy) dismissing him with effect from 6 March for failing to follow company procedures and taking unauthorised leave. The letter referred to a disciplinary hearing (that hadn’t taken place) and to the fact that Mr Montanaro hadn’t contacted Lansafe (which he had). Mr Montanaro, unaware of the letter, continued working remotely from Italy and informed his employer about Italian travel restrictions, but was then sent his P45 by email on 1 April. Mr Montanaro brought various claims in tribunal, principally one for automatic unfair dismissal by virtue of s. 100(1)(e).
The tribunal upheld the s. 100 claim.
The real reason for his dismissal were the appropriate actions he took in circumstances he reasonably believed were dangerous.
Given the declaration of a pandemic and the risk of catching a contagious virus which could lead to serious illness and death, Mr Montanaro reasonably believed the danger was serious and imminent. He had taken appropriate steps to protect himself and others. He notified his employer and asked for advice, instructions, and assistance with documentation, and complied with the instruction to have his mobile and laptop on so he could receive instructions quickly and be able to communicate. When he didn’t hear from Lansafe he communicated directly with Boohoo and continued his work on a day-to-day basis. The purported dismissal letter had not been relevant to his circumstances and the employer’s evidence as to the reason for dismissal had not been credible. He had been dismissed because he had communicated the difficulties posed by the pandemic and proposed to work remotely from Italy until circumstances changed.
Link to judgment: https://www.bailii.org/uk/cases/UKET/2021/2203148_2020.html
As ever, these cases are fact-sensitive and, as a tribunal decision this has no precedent value. In contrast to the employee in the Rodgers case, Mr Montanaro was willing to continue working and had not refused to return to work. There was also evidence that other clients of the employer had agreed to remote working and therefore there were no actual barriers to Mr Montanaro performing his duties remotely. The message to employers in such instances is act cautiously before trying to dismiss because an employee doesn’t turn up for work due to COVID-19 and carry out a full investigation.
As the vaccination programme continues, with vaccinations giving such a high level of protection against death and serious illness, it will become more difficult to argue that there is belief of serious and imminent harm.