COVID-19: raising health and safety concerns

Preen v Coolink Ltd

An employee was unfairly dismissed after raising health and safety concerns about working during lockdown.

Background

Mr Preen had worked for Coolink since April 2019 as an air conditioning and refrigeration engineer, providing emergency cover and routine servicing to domestic and corporate customers. The first national lockdown came into force on 26 March 2020. People were advised to stay at home except in limited circumstances, one of which was travelling to and from work - but only where it was absolutely necessary and could not be done from home.

On the evening of the Prime Minister’s announcement of the lockdown (23 March), Mr Preen contacted his manager (Mr Mullins) via WhatsApp to find out how the lockdown effected his work. Mr Mullins said that staff could continue to go to work but couldn’t gather socially. Mr Preen was unhappy about this and told Mr Mullins that although he didn’t want to stop working, ‘we all have a responsibility to do what’s being asked. Therefore I am going to stay at home and would urge you to do the same. I understand that if any call out is urgent and/or essential I will come in to help out of course but unless this is the case, I think it best we all do what’s being asked’. A few minutes later, Mr Mullins texted back ‘no issues’ and said that he would call around the next day to collect Mr Preen’s van. He was then dismissed for purported ‘redundancy’ the same day in a WhatsApp message. Confirmation of this was sent by his manager on 25 March.

Mr Preen brought a tribunal claim arguing that he had been unfairly dismissed for raising health and safety concerns (amongst other claims including whistleblowing, which did not succeed). Section 100 of the Employment Rights Act 1996 (ERA) makes the dismissal of an employee whose employment is terminated in the following instances automatically unfair:

  • [where there is no health and safety representative or safety committee] he brought to his employer’s attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety’ (ERA, s. 100(1)(c)), or
  • in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he left or proposed to leave or refused to return to his workplace’ (ERA, s. 100(1)(d))

No qualifying service is required for such a claim.

Tribunal decision

Mr Preen succeeded in his claim for automatic unfair dismissal under s. 100(1)(c) but not in his claim under s. 100(1)(d).

Mr Preen’s WhatsApp message was enough to alert his employer to his concerns about continuing to work during the lockdown. The tribunal found that Mr Preen’s attitude about the seriousness of COVID-19 changed significantly after the Prime Minister told the country to lockdown and that he reasonably believed that continuing to do non-essential work would put himself and others at risk:

‘[Mr Preen] was refusing to do routine work because of genuine concerns about following the lockdown rules and protecting the health of himself and others. This is exactly what s. 100(1)(c) is designed to prevent. Employees must be able to raise genuine and reasonably held concerns about health and safety with their employer without the fear of being dismissed as a result’.

Mr Preen’s claim under s. 100(1)(d) failed. The tribunal held that there were no circumstances of danger which Mr Preen reasonably believed to be serious and imminent. This is a higher threshold than s. 100(1)(c), requiring ‘danger’ which is ‘serious and imminent’, rather than simply potential harm to health and safety. While it was undeniable that COVID-19 is dangerous to many people, the tribunal held that Mr Preen did not reasonably believe that either he or others were in serious and imminent circumstances of danger if he went to work. While not bound by the decision, the tribunal quoted with approval the comments made in Rodgers v Leeds Laser Cutting Ltd that the very existence of COVID-19 does not automatically create circumstances of serious and imminent danger in the workplace, ‘as otherwise any employee could refuse to work in any circumstances by virtue of the pandemic’. Something more is required, such as a particular vulnerability or an unsafe workplace. That was not the case here as Coolink had put in place health and safety measures, added to which Mr Preen had said he was willing to carry out emergency work which undermined his claim that the workplace was so dangerous that he shouldn’t be working at all.

Link to judgment: https://www.bailii.org/uk/cases/UKET/2021/1403451_2020.pdf

Comment

Section 100(1)(c) can only be used in circumstances where there is no health and safety representative or committee, which clearly there was not here. Therefore Mr Preen had to bring his concerns to the attention of his employer by reasonable means, which he did via the WhatsApp message. The tribunal found that this was the primary cause of his dismissal and it is a useful reminder to employers of the dangers of dismissals in these circumstances.