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COVID-19: employee bucks trend as he wins unfair dismissal claim

An employee who remained in Italy at outbreak of pandemic was unfairly dismissed, following a run of cases decided in favour of the employer.

Andrew Collier
Andrew Collier HR Adviser
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Following our recent reports of Employment Tribunal cases that concerned Covid-19 related dismissals all tending to side with the employer, this week saw a successful claim by the employee make the news.

In Montanaro v Lansafe Ltd,  the claimant believed he had permission to take holiday on 9 and 10 March 2020 for his sister's wedding in Italy.  On 9 March, Italy went into lockdown and UK government guidance stipulated 14 days' isolation was required on return from Italy. On 10 March, the claimant - in response to asking his employer what he should do - was told by his employer to keep his mobile and laptop on and wait for instructions.   The claimant had suggested that he could work remotely in Italy until circumstances changed but also indicated he would be of course return to the UK and isolate (though he could not return to the workplace).  On 11 March, the employer dismissed the claimant for failing to follow company procedures and taking unauthorised leave. 
 
The Tribunal held that there were circumstances of danger, given the declaration of a pandemic and the risk of catching a contagious virus which could lead to serious illness and death, and that the claimant reasonably believed the danger was serious and imminent. The claimant had taken appropriate steps to protect himself and others. He had asked his employer for advice and had forwarded appropriate information about the situation in Italy. He was ready to receive communication and instructions for work on his mobile and laptop.   The purported dismissal letter and evidence as to the reason for dismissal had not been credible.  The claimant had been dismissed because he had communicated the difficulties posed by the pandemic and proposed to work remotely from Italy until circumstances changed.

the Tribunal held 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 (section 100(1)(e), Employment Rights Act 1996).  In this case, Mr Montanaro was granted that protection and despite having less than two years' service was successful in his unfair dismissal claim.

As was always going to be the case, each Tribunal judgment will be fact specific (and there is a lot of fact in this case which does not reflect well on the employer) but this decision certainly shows that Tribunals will not necessarily side with the employers where Covid-19 led to a hasty dismissal.   
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