As the backlog of Employment Tribunal claims start to filter through the system, we are starting to see employment tribunal judgments from COVID-19-related cases that provide an indication of how the judiciary might approach what is essentially a very new area of law.

In this week's case of interest, a Tribunal has found that the dismissal of an employee who told his manager he would not return to work until after lockdown because he feared he would infect his children (who had ill health conditions) with COVID-19, was not automatically unfair. The claim was pursued under sections 100(1)(d) and (e) of the Employment Rights Act 1996, which provide employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger. The tribunal rejected an argument that COVID-19 created circumstances of serious and imminent workplace danger, concluding that the employer had taken all reasonable safety precautions that the government advised at the time. 
 

The employee and claimant in this case had messaged his manager on 29 March 2020 to state that he would be staying away from his workplace "until the lockdown has eased" because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with COVID-19. A month later, he was dismissed by his employer.   As the claimant did not have two years' service with which to bring a claim for ordinary unfair dismissal, he alleged that he had been automatically unfairly dismissed for exercising his rights under sections 100(1)(d) and (e) of the ERA 1996.

 

The Tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known when the relevant acts took place. On the facts, such a belief could not be established, so sections 100(1)(d) and (e) were not engaged and the claim failed. In particular the Tribunal noted that:

 

 - Despite the claimant's concerns about COVID-19, he had breached self-isolation guidance to drive a friend to hospital on 30 March 2020 (the day after leaving work).
- His message to his boss did not mention concerns about workplace danger and he could not show there had been any such danger. In March 2020, government safety guidance advised hand washing and social distancing. The employer had implemented both precautions.
- He had not taken any steps to avert danger or raised concerns with his manager before absenting himself from work. This was not acceptable.

The most important aspect of the Tribunal's judgment was that the claimant's argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer's safety precautions was rejected.   The Tribunal found that accepting this submission could lead to any employee being able to rely on sections 100(1)(d) and (e) to leave the workplace, simply by virtue of the pandemic.   

 

This decision demonstrates the importance for employers of implementing appropriate COVID-19 secure measures and following the government guidelines in force at the time. Employers who do so will reduce the risk of successful claims under sections 100(1)(d) and (e) by making it harder for employees to establish that the workplace is dangerous.   For employees, this judgment is a reminder that an individual may not be entitled to assess COVID-19 risk subjectively - it is the objective position, locally and nationally, that matters.