28 July 2021

Covid-19: Unfair dismissal

Another employment tribunal case this month has highlighted the importance of taking appropriate steps to make the workplace safe during the pandemic.

In Gibson v Lothian Leisure, the employee worked as a pub chef. He had no prior issues at work. When the Covid-19 pandemic struck, and pubs closed, he was furloughed. His father was shielding due to various medical conditions. Towards the end of the first lockdown, the employer asked the employee to come in and help out ‘a bit’. The employee had already started raising concerns about catching Covid at work and bringing it home to his father. The employee said the employer was ‘very robustly negative’ in response, provided no PPE for staff and had no intention of creating a Covid secure workplace. The employee said he was told to shut up and get on with it. The employee was dismissed summarily by text without notice, with the employer saying it was going to run the business with a smaller team.

The employee did not have two years’ continuous employment so brought claims for automatic unfair dismissal under section 43B of the Employment Rights Act 1996 (whistleblowing) and s100(1)(e) – that he was dismissed for taking appropriate steps to protect himself or others from serious and imminent danger. The whistleblowing claims were dismissed. His only concerns had been for his father and so he failed the ‘public interest’ requirement of the whistleblowing test. However, he won his claim under s100(1)(e). The tribunal found that the employee reasonably believed the Covid risk to his father was serious and imminent. Raising the issue of PPE was an appropriate step. The employee had previously been well-regarded and valued. The tribunal said he had been dismissed because he had taken steps to protect his father from serious and imminent danger. He had been automatically unfairly dismissed.

There are two big lessons from this case. Dismissing Covid-security is dangerous. So is not defending a tribunal claim – in this case the employer did not enter a response and did not attend the hearing. That resulted in the employee’s evidence being uncontested and therefore accepted by the tribunal. The employer must now pay 6 months’ loss of earnings together with unpaid holiday pay and pension contributions. What almost certainly started as a knee jerk reaction at a time of high stress turned into an expensive mistake.

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