Issue 39 October 2021 - Journal - Page 58
Employment Tribunal Rulings on
Covid-19 Issues - What Can we Learn?
by Helen Coombes and Shalina Crossley
Firm conclusions cannot be drawn from this small
handful of decisions, but it seems likely that ETs will
generally follow the approach in Rodgers and require
some evidence that the employer is failing to take
proper precautions or other evidence of particular
danger before an employee can be justified in refusing to go into the workplace.
The covid-19 pandemic required many employers to
make difficult decisions in unprecedented and rapidly
evolving circumstances, giving rise to concerns this
would lead to a deluge of employment tribunal claims.
This article looks at some of the early cases to see what
lessons can be learned when planning for a return to
The way in which the employer and employee have
behaved also makes a difference. In Montanaro, the
employer gave the employee no advice on whether
he should stay in Italy or return to the United Kingdom. The employer behaved inappropriately, for example by sending a dismissal letter to the employee's
UK address despite knowing he was in Italy.
Employment tribunal (ET) decisions are starting to be
published on key issues such as employees refusing to
work, compliance with health and safety rules and the
calculation of payments under the furlough scheme.
Some of the more instructive findings and conclusions
that can be drawn from them are summarised below.
In Rodgers, the employee left the workplace with a
casual "see you later mate" and was caught flouting
self-isolation rules outside of work while trying to
claim that he was justified in not attending work.
Employees refusing to work
Employers who were able to continue operating
during lockdowns found that some of their employees
refused to attend work. Employees have statutory
rights to stay away from work or take other appropriate steps to protect themselves (or others) where they
reasonably believe there are circumstances of serious
and imminent danger. It has been unclear how ETs
would interpret this in the context of the covid-19
Some employees have not refused to go to work
altogether but have declined to carry out certain tasks.
In one such case, dismissing an employee for refusing
to attend the home of his self-isolating manager to deliver equipment was found to be automatically unfair(4) where the employee was taking appropriate
steps to protect himself.
The case of Accattatis v Fortuna Group(1) involved a
sales and project marketing co-ordinator who requested to be furloughed or to be allowed to work
from home, given his concerns about commuting and
attending the workplace. The employer offered annual leave instead. The ET found that the employee
could not work from home and that he could not
simply refuse to attend the workplace due to the
The situation has changed since the decisions on these
cases, with most people now being vaccinated and the
government recently lifting most restrictions and encouraging a return to work. Nonetheless, the potential certainly remains for employees to meet the
"serious and imminent danger" test, such as where
their employer has demonstrably failed to put in place
suitable health and safety measures.
In a contrasting case (Montanaro v Lansafe Ltd),(2)
an IT professional found himself in Italy on annual
leave when lockdown was announced and decided to
remain there. In finding the employer's decision to
dismiss him unfair, the ET took the view that the
threat of coronavirus itself was a serious and imminent danger and that the employee was taking appropriate steps to protect himself by working remotely
Dismissal for failure to comply with health and
While some employees have objected to attending the
workplace due to their concerns, others have refused
to comply with their employer's workplace safety guidance. Kubilius v Kent Foods Ltd(5) concerned a delivery driver who was dismissed for failing to wear a
mask while in his lorry cab at a client site. The ET
found the dismissal to be fair despite the official guidance around mask-wearing at the time having been
In Rodgers v Leeds Laser Cutting Ltd,(3) however,
the ET observed that if the virus itself was capable of
creating circumstances of serious and imminent danger, this would result in the law protecting any refusal
to work in any circumstances simply by virtue of the
pandemic. The employer in that case had implemented the government's workplace safety guidance
and the employee had not raised any particular concerns. The ET concluded that the employee had no
right to absent themself from work.
EXPERT WITNESS JOURNAL
This case supports employers' rights to enforce their
own health and safety rules even where they go beyond government guidance, albeit the ET focused
more on the disciplinary process and the employee's
ban from the client site, meaning he could no longer
perform his job, than the instruction to wear a mask.
There will still be cases where dismissing an employee
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