The latest quarterly Employment Tribunal statistics for the period October to December 2020 were published on 11 March 2021. The statistics show a 25% increase in single claims received and an increase in outstanding caseload of 36%. This increase is almost certainly due to the impact of the coronavirus pandemic on the economy and the significant increase in unemployment. The increase in claims is likely to continue in the months ahead and could be further accelerated when the furlough scheme is withdrawn at the end of September. We look at two recent COVID-19 pandemic related decisions that impact employers.
Employment Tribunal COVID-19 pandemic cases
We have recently had two Employment Tribunal decisions on pandemic-related claims and they are of considerable interest to employers as they relate to issues many employers are grappling with at the moment.
In the case of Rodgers v Leeds Laser Cutting Ltd (March 2021) the issue was whether a health and safety dismissal during the pandemic was automatically unfair under section 100 Employment Rights Act 1996 (ERA).
UPDATE: Since this article was written, in the case of Rodgers v Leeds Laser Cutting Ltd, Mr Rodgers subsequently appealed unsuccessfully to the EAT. His appeal to the Court of Appeal was also dismissed in December 2022. The Court of Appeal upheld the earlier decisions that Mr Rodgers was not automatically unfairly dismissed when he refused to return to work until the COVID-19 lockdown eased.
In the case of Kubilius v Kent Foods Ltd (February 2021) the issue was whether dismissal of an employee for refusing to wear a face mask was fair.
Rodgers v Leeds Laser Cutting Ltd
Mr Rodgers worked for Leeds Laser Cutting Limited from June 2019 until April 2020. Following the first national lockdown in March 2020, LLC notified employees that the business would be staying open. It put in place measures to allow staff to continue working and these included social distancing, wiping down surfaces, staggered start times and making masks available. The workspace was large and there were few employees.
On 29 March 2020, Mr Rodgers texted the Production Manager saying that because he had a child with sickle cell disease (now potentially regarded as clinically extremely vulnerable), he had no alternative but to stay off work until the lockdown had eased. He was subsequently dismissed.
Mr Rodgers then brought a claim for automatic unfair dismissal under section 100 ERA.
Section 100(1)(d) and (e) ERA provide that dismissal will be automatically unfair if the sole or principal reason for dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent:
- He left or refused to return to his place of work (or proposed to do so), it not being reasonable to expect him to avert the danger; and/or
- He took (or proposed to take) appropriate steps to protect himself or others from the danger.
The Employment Tribunal dismissed the claim. Mr Rodgers accepted that it was generally possible to socially distance from colleagues and LLC had conducted a proper risk assessment and taken steps to implement it, including regular reminders about social distancing and handwashing and providing suitable facilities. Further, Mr Rodgers’ text referred to staying away from work until the lockdown had eased, as opposed to when improvements were made to the workplace.
The Employment Tribunal found that, even if Mr Rodgers had a genuine belief of circumstances of serious and imminent danger, it would not have been reasonable taking into account the above factors and the knowledge of COVID-19 at the time. Further, to the extent that there were circumstances of danger, Mr Rodgers could reasonably have been expected to avert them by for example, social distancing, using PPE if he wished to do so and regularly handwashing. While section 100(1)(e) could apply to steps taken to protect his vulnerable family members, rather than himself, Mr Rodgers’ steps were not appropriate.
This case is explored further in issue 229 of Reward Strategy, which you can read now.
Whilst this is a very helpful analysis of the claim under s100 of the ERA, employers must still be mindful of potential claims for personal injury and indirect discrimination where clinically extremely vulnerable family members are involved. However, carefully following the various Government COVID-19 sets of guidance should put employers in a good position.
Kubilius v Kent Foods Ltd
Mr Kubilius was a lorry driver and worked for Kent Foods from July 2016 until he was dismissed in June 2020. Mr Kubilius was responsible for making deliveries to and from Kent Food’s major client. In fact, about 90% of the driving work from the depot where Mr Kubilius was based was to that specific client. The client’s updated COVID-19 health and safety rules made it compulsory to wear face masks, including for visitors, although this was not specifically on the site paperwork as it was not a permanent change. On 21 May 2020, on arriving at the site, Mr Kubilius was given a face mask to wear but he repeatedly refused to wear it while he was inside the cab of his lorry, even though his window was down. He said that face masks were not mandatory according to Government guidance at the time. He was then banned from the site.
The Employee staff handbook required Mr Kubilius to treat clients courteously (a good relationship with clients was essential to Kent Food’s business), safeguard his own health and safety and follow clients’ instructions regarding PPE.
Following an investigation, communications with the client including a suggestion that they reconsider the ban (which the client refused), and a disciplinary hearing, Mr Kubilius was dismissed for gross misconduct on 16 June 2020.
The Employment Tribunal held that the dismissal was fair. Kent Foods had conducted a reasonable investigation and dismissal was not outside the “band of reasonable responses.” Although a reasonable employer might have concluded that this one instance of misconduct merited a warning rather than summary dismissal that was not the issue. Rather, it was whether Kent Food’s decision fell within the range of reasonable responses. Mr Kubilius’ lack of remorse and insistence that he had done nothing wrong led Kent Foods to reasonably losing confidence in his future conduct, in particular, maintaining client relationships in the future. There were also the practical difficulties arising in Mr Kubilius being banned from the client’s site with no other suitable alternative jobs available.
These two decisions are not binding on other Employment Tribunals, and are very different from each other: the first one testing a claim for automatic unfair dismissal regarding absence from the workplace alleged to be on health and safety grounds; and the second one based on the employee’s refusal to adhere to health and safety rules imposed by a major client.
However, they are of significant interest to employers who are currently, or may in the future, be dealing with similar situations (or have even already done so in the past). Employers will be reassured that in both cases the reasonable COVID-19 safety protocols put in place on the one hand by the employer, and on the other hand by the employer’s client, provided the grounds to defend the unfair dismissal claims.
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