The Employment Tribunal is starting to give decisions on claims brought at the beginning of the COVID-19 pandemic. As both employers and employees, we have all learned a lot about how to handle the various challenges that have arisen over the past year, and we are now starting to gain an insight into how the Employment Tribunal perceives and interprets the way that employers have handled these challenges.
Price Bailey warns that COVID 19 Employment Tribunal cases are on the rise
Price Bailey writes:
This article will look at a recent Employment Tribunal decision that shows the importance of employers implementing robust COVID-19 measures, policies, and procedures to protect themselves from several costly claims that an employee could make.
The case under the microscope in this article is Rodgers v Leeds Laser Cutting Ltd ET1803829/2020 (1 March 2021). Mr Rodgers brought a claim for automatically unfair dismissal against Leeds Laser Cutting Ltd. Mr Rodgers notified his employer that he would be staying away from the workplace to protect his family’s health in light of the growing COVID-19 threat and would stay away until the pandemic was over. One month later, Mr Rodgers was dismissed from his employment. The case presented by Mr Rodgers to the Tribunal was that he was automatically unfairly dismissed because he was entitled to stay away from his workplace where he believed there was a risk of serious and imminent workplace danger. This is an exercise of his right under s.100(1)(d) and (e) of the Employment Rights Act 1996 (ERA 1996).
The Tribunal found in favour of the Respondent that their decision to dismiss Mr Rodgers was not automatically unfair and that he had failed to prove that there was a genuine belief in the severity of the danger that he would be exposed to if he had continued to attend his workplace throughout the pandemic.
We want to highlight why the Employment Tribunal reached this decision. Their reasoning is based on the specific facts and circumstances at the time of Mr Rodgers dismissal.
He had breached his self-imposed isolation by taking a friend to the hospital.
His employer was following all the relevant government guidance in force at the time.
He had not made any prior efforts to avoid the danger that he felt he was exposed to at his workplace.
Employees have a duty to make themselves available for work and accept instructions and tasks from their employer. Employers have a duty to ensure that the workplace is safe for their employees. In this case, Mr Rodgers leaned on his belief that attending the workplace was detrimental to his health and safety. The Tribunal recognised that the employer had taken all reasonable steps to create a safe workplace and that the employee’s actions contradicted the severity of his perception of the danger he was exposed to. Please note that this decision is not binding and turned on the specific facts.
As cases such as this reach the public domain, more employees will probably look to assert their right under s.100(1)(d) and (e) ERA 1996, particularly now that more employers are asking their employees to return to the workplace. So our message to employers is that they communicate clearly with their employees what steps are being taken to minimise the dangers posed by the pandemic. The best way to do this is to implement a COVID-10 policy and provide regular updates to the workforce on the specific measures in place.
Another type of claim expected to increase is whistleblowing. Employers must take all comments and feedback on their COVID-19 policies and measures incredibly seriously. Failure to do so may line an employee up to bring a successful whistleblowing claim. Where it is projected that whistleblowing claims concerning defective or non-existent COVID-19 policies are likely to be on the rise, we want to encourage all employers to take the time to review the policy documents that they have in place to avoid the costly repercussions of an avoidable employment tribunal claim.
Price Bailey is a leading firm of business advisers and accountants with ten offices throughout East Anglia, London, Guernsey, Eastern Carribean and Dubai serving local SMEs, private clients and regional, national and international businesses.