COVID-19 related cases within the employment tribunal

Employment claims involving cases related to COVID-19 are now starting to emerge within the employment tribunal (ET).

Back in 2020, at the initial stages of the pandemic, many employers were confused about how to manage various workplace issues arising from COVID-19. Issues such as isolation requirements, employees within the vulnerable health categories, childcare requests and furlough etc were developing week-on-week.

It was a stressful time, particularly with ever changing guidance being issued by the government as new developments arose. Thankfully, concise guidance is now very much readily available, and many restrictions have currently ceased, meaning that workplaces are now beginning to see some form of normality.

However, long COVID could affect an employee’s ongoing ability to work. Please see our article on long COVID here.

The following cases highlight some of the claims that have been issued by employees in the early days of COVID-19.

Raising concerns about lack of PPE

In the case of Mr Gibson v Lothian Leisure, the employee was unfairly dismissed for raising health and safety concerns about the lack of PPE and other workplace COVID-secure measures.

Mr Gibson was a chef who was furloughed during the first national lockdown. His father had a number of health issues and was therefore shielding and classified as clinically vulnerable.

Towards the end of lockdown, and with the prospective reopening of the restaurant sector, the employer asked Mr Gibson to attend work. Mr Gibson was concerned about contracting COVID-19 and passing it on to his father because his employer had provided no PPE equipment or created a COVID-19 secure workplace.

In evidence, Mr Gibson stated that he was told to ‘shut up and get on with it’.

Automatic unfair dismissal

Without any discussion or process, Mr Gibson’s employment was terminated with immediate effect by text message. The text advised him that the business would be continuing with a much smaller team on reopening. He claimed automatic unfair dismissal, notice pay, holiday pay and a shortfall in furlough pay and unpaid pension contributions.

Under s100 of the Employment Rights Act 1996, employees are protected from being subjected to a detriment or being dismissed for exercising their right to leave the workplace. Employees must have a ‘reasonable belief’ that their workplace poses a serious or imminent threat to them or others. Such right is a day 1 right and does not require two years’ service.

His claims succeeded because the ET was satisfied, on the evidence, that Mr Gibson’s actions met the requirements of s100(1)(e) of the Employment Rights Act 1996 in that the circumstance of danger was the growing prevalence of infections by the COVID-19 virus.

Compensation

Mr Gibson received a basic award of £6,562 and £14,500, reflecting the time he was out of work for 29 weeks, as well as a week’s notice pay and £1,200 for accrued holiday pay.

Refusal to attend work

In the case of Ms Moore v Ecoscape UK Ltd, Ms Moore worked within sales and administrative support. During the first lockdown, her employer considered furlough but instead took steps to comply with the government’s workplace guidance around a COVID-19 safe environment. Ms Moore did not feel safe returning to work, despite the measures put in place, and asked to work from home. The employer refused on the basis that the nature of her work involved her dealing with deliveries and customers.

She submitted a grievance and later resigned.

She submitted a claim to the ET claiming her constructive dismissal was automatically unfair under s100(1)(d) or (e) of the Employment Rights Act 1996.

Reasonable steps

Ms Moore’s claim did not succeed. The ET found that the employer had taken reasonable steps to accommodate Ms Moore’s concerns and engaged with her on a regular basis. While the ET accepted Ms Moore had general concerns regarding COVID-19, she had a general fear about being required to leave home rather than a specific workplace concern and had been unwilling to explore alternative options.

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