top of page
Search

COVID goes to Court!

Laura Bowyer

Updated: 5 hours ago

With the world beginning to open up after over a year, we have seen one of the first Employment Tribunals in relation to the virus.


An employee who worked as a Laser Operator in a large warehouse, “the size of half a football pitch”, that was typically shared with five colleagues has recently taken their employer to court for unfair dismissal.


The warehouse, where the individual worked, remained open during the first national lockdown, ensuring that the correct safety measures had been put in place and communicated to all staff to help protect them from COVID-19. These measures included social distancing, wiping down surfaces, staggering start times, finish times and break times to avoid people coming into prolonged contact with each other. Masks were also available to those that wished to use them.


Just before the initial UK lockdown, a different employee started to feel unwell, displaying some of the symptoms linked to COVID-19. As a result this staff member was sent home and advised to self isolate.


A few days later, the Laser Operator developed a cough which he believed was due to the temperature and dust in the warehouse where he was working. This staff member did not think that it was COVID-19 and continued his day as normal, leaving at the end of the day. He then decided to self-isolate for a week and obtained an NHS isolation note.


The employee in question informed his manager via a text message that he did not intend on returning to work “until the lockdown has eased”. He was not aware if his 7 month old had any underlying health issues, however his eldest child has sickle cell anaemia and therefore was treated as a vulnerable person and this was a concern for this member of staff. The manager replied, by text, “okay mate, look after yourself”. No other contact was made between the company and the employee until around a month later when the employee was informed that he had been dismissed.


Any employee needs a minimum of 2 years’ service in order to earn their rights to an ordinary unfair dismissal. This employee had less than 2 years’ service and could not claim ordinary unfair dismissal.


The employee stated that his dismissal was automatically unfair (for this he did not need 2 years’ service with the company) as he had exercised his legal right to not return to the workplace due to a reasonable belief that the workplace would put him in “serious and imminent danger” of contracting COVID-19.


Based on the evidence provided the tribunal looked into whether or not the employee reasonably believed that his workplace would put him in any danger of contracting the virus. This was to ascertain if the employee had in fact been automatically unfairly dismissed. It was accepted that the gentleman did have significant concerns about the pandemic generally and was worried about the effect this would have on his children at a time when knowledge of the effects of COVID-19 was minimal.


The employee’s case was found to be contradictory and confusing at times. The tribunal heard evidence that during his one week in self-isolation period he had in fact driven a friend to the hospital. On one hand, he stated that he had not left his home for nine months, only to discover he had spent a period of time, during the pandemic, working in a pub.


The tribunal concluded that the employee’s decision to stay off work was not to do with his safety in the workplace, as adequate measures had been taken. It was clear his concerns about COVID-19 and the risk of contracting this were “general”, rather than being directly linked to his workplace conditions. The employee was heard referring to his own home as the safest place and told the court he had chosen to self-isolate “until the virus calms down”.

In order for the employee to rely on the statutory protection, he would have to demonstrate that their health and safety concerns were related to the workplace conditions and not general concerns surrounding the pandemic. In this instance, the tribunal found the employee had not been unfairly dismissed.


When an employee raises health and safety concerns about working conditions to their employer, the employer must show that they have taken the appropriate steps to protect their staff and communicate any changes they have implemented. If the employer is based in England, these actions should be in line with the government guidelines on ‘working safety during coronavirus’. Separate guidance applies in Scotland, Wales and Northern Ireland. Employers should make any required amendments to their risk assessments or workplace measures after discussing employee concerns.


If you’re an employer and have any concerns, then email us on info@affablepartner.co.uk


Disclaimer: Our blog content is for marketing or general information purposes only and doesn't constitute legal advice. Whilst we aim to provide accurate and up to date information, it should not be relied upon as a substitute for advice tailored to your specific circumstances. Reading this blog doesn't establish a client relationship with us. For formal advice please contact us directly: info@affablepartner.co.uk

1 view0 comments

Recent Posts

See All

We Won!!!!

Comments


bottom of page