Key points from recent Covid-19 case law

Posted: 23/12/2021

We have been told to sing Happy Birthday while washing our hands and to stay home to protect the NHS. One in four of all employees in the UK have been furloughed at some point between March 2020 and June 2021 according to the Office of National Statistics.

While we may still be some way from the great ‘return to work’ or the ‘new normal’ becoming fully normalised, rulings from Employment Tribunals (ETs) during the early parts of the pandemic have now started to come through to answer those key questions that employers in the social housing sector and employment lawyers scratched their heads over in the peak of the pandemic. This has set out some key rules for HR and business owners on how to deal with the ongoing pandemic from an employment law perspective to avoid or limit potential claims.

The slow return to work and the importance of communication

The return to work has been actively encouraged by the Government during this summer but last year there were a number of concerns in coming back to work with the backdrop of the pandemic and before the vaccination roll out, as set out in the following cases.

• In Accattatis v Fortuna Group (3307587/2020), the employee repeatedly asked to be furloughed despite being busy working for a major manufacturer of PPE and he did not explain how he could work from home as an alternative. He had explained that he did not want to commute so was offered the chance to take holiday or unpaid leave.

As the employer had explained the numerous precautions that it had taken to make the workplace secure and, because the employer was not insisting that he returned to work (as he could have taken unpaid leave if he did not want to work), it was not automatically unfair dismissal when he was dismissed.

• The case of Rodgers v Leeds Laser Cutting Ltd (1803829/2020) held that an employee whose daughter had sickle cell anaemia but who had not expressed why he was specifically concerned about the employer’s workplace (rather stating that he could not work at all because of the pandemic) had not done enough to demonstrate that he had a fear of “serious and imminent danger” at the workplace. This is required for an automatically unfair dismissal under health and safety grounds.
• However, in Gibson v Lothian Leisure (4105009/2020), the employee had explained his concerns about the lack of PPE at work and that his father was clinically vulnerable. When he was dismissed, it was found to be an automatically unfair dismissal because of his health and safety concerns and because he was being required to attend work. Following this case, employers should be careful to consider potential links to loved ones that employees may have even if they are not the ones with the relevant conditions.
• In Bryan v Landmarc Support Services Ltd ET/2502158/20, the claimant employee had asthma and a vulnerable mother with cancer. The claimant had even chosen to home-school her child despite being entitled to send her child to school as she was a key worker. The claimant’s role only required her to be physically present once every seven weeks and, even then, this was only to get hard copy documents or show contractors around.

Given that other people could do these jobs, the employer’s blanket policy was held to be indirectly discriminatory as the employer could not justify this policy as a proportionate means of achieving a legitimate aim. It clearly put the claimant in a worse position compared to her colleagues who did not have her condition. She was also able to claim constructive unfair dismissal which was held to be automatically unfair on the basis of health and safety concerns.

The key from decisions so far about returning to work appears to be good communication. In these cases, whoever communicated their concerns or solutions with the most care and forethought were more likely to win the case. The more that the employer did to protect their workplace, the less likely that an automatic unfair dismissal claim would be successful.

Navigating wider health and safety claims

As well as the standard health and safety automatically unfair dismissal claims set out above, whistleblowing cases can arise where an employee speaks out about the employer’s failure to comply with the relevant protections against spreading Covid-19.

In Lough v Taaks of Scotland Ltd and another (ET/4107899/2020), an employee who suffered from cancer not only raised protected disclosures about the workplace not being safe for people with disabilities but also that the employer ignored the Scottish Government’s rules on Covid-19 precautions to take. She was also required to go on furlough leave so that the employer could claim the grant despite the employer still requiring her to work. The claimant was successful in her claims for whistleblowing among other claims.

Conversely, employers can take precautions if they are designed to protect the employee but need to carefully consider discrimination claims. In Prosser v Community Gateway Association Ltd (Case No. 2413672/2020), a pregnant employee who was sent home and was not permitted to return for several months on health and safety grounds was not discriminated against. It is important to note that, if she could have worked from home, then this case could have been decided differently.

Employers should, therefore, take risk assessments very seriously and carefully consider all options available to each employee when making decisions on who must attend and those who cannot attend work. With wider claims alongside health and safety complaints, this area requires tailored considerations of the employees’ concerns.

Working from home in the future

When making policies about who can or cannot work from home, the reasons for the decisions are vital. This may become less relevant for the social housing sector in time but with new variants being discovered all the time, office-based workers may still have time from home in the coming months.

In Moore v Ecoscape UK Limited (2417563/2020), the employee had concerns about leaving the house overall rather than having a specific concern about attending the workplace. In this case, the employer was found to have taken steps to make the workplace safer but the employee still refused to attend as they declared that if they could not work from home they were not prepared to work. The claims for breach of contract were dismissed.

In the case of Ham v Esl Bbsw ET/1601260/2020, however, an employee was dismissed for refusing to attend the home of their manager who was self-isolating with suspected Covid-19 symptoms. This was not, as the employer had stated, a refusal to obey a reasonable management instruction but was, instead, a reasonable health and safety concern to prevent serious and imminent danger.

The claimant was only in the probationary period but, importantly, automatic unfair dismissal claims like this do not have a minimum period of qualifying service. Social housing employers will need to carefully consider how much they will force home visits for support workers who go into the homes of the most vulnerable people in society.

Staff travelling abroad

Holidays were problematic last year and they remain so this year given the potential isolation requirements and ever-changing travel restrictions.

In Montanaro v Lansafe Ltd (ET/2203148/2020), an employee who attempted to work remotely while stuck in Italy after its national lockdown started was dismissed for not returning to work. This was despite him taking steps to check whether the employer could assist him in trying to get a flight out of Italy and him negotiating and agreeing with one of the employer’s clients that he could continue to work on their matters remotely.

This was held to be an automatically unfair dismissal because the employee had not refused to work as argued by the employer but had, instead, explained his difficulties in returning and suggested a solution to work remotely. There was a serious and imminent danger to him and others if he attempted to travel, not to mention that it was illegal for him to travel from Italy to the UK at the time.

Common themes to learn from these decisions

As many of these cases are first instance decisions made by employment tribunals (ETs), as opposed to the employment appeal tribunal (EAT) or appeal courts, they are not binding and are all very fact-specific.

It is important to remember that these cases take some time to work their way through what is already an overloaded employment tribunal system so the messages from more recent cases about mass return to work demands from employers since vaccinations were available may filter through in the coming months. Those cases will provide further lessons for HR and employers but the same mantra of good communication should stand them in good stead for the later challenges.

To navigate this difficult and growing area, employers should keep clear lines of communication with their employees open; listen to the specific concerns of their employees; watch out for discrimination claims based on pregnancy, disability or even associative discrimination; and adapt risk assessments and health and safety rules to the specific needs of employees.

The cases above were determined on the specific facts and which party was deemed to be acting the most reasonably. Employers would be wise to discuss their rationale with staff so that they are fully aware of the reasons behind decision-making and can evaluate the best course of action moving forward.

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