Employment Tribunal Considers Further Automatic Unfair Dismissal Cases During the Coronavirus Pandemic
The Employment Tribunal has considered claims of automatic unfair dismissal under section 100(1)(e) of the Employment Rights Act 1996 (ERA 1996) in two recent cases with contrasting rulings.
In the case of Accattatis v Fortuna Group (London) Ltd (Accattatis), the Tribunal held that an employee who was dismissed after asking to be furloughed because he felt uncomfortable commuting and attending the office was not automatically unfairly dismissed under section 100(e) of the ERA 1996. In Gibson v Lothian Leisure (Gibson) however, the employee's automatic unfair dismissal claim under the same provision of the ERA 1996 was successful after the employee was dismissed for raising concerns about the effect of him returning to work on his shielding father.
Cases of Dismissal
In Accattatis, the claimant Mr Accattatis worked for a company which sells and distributes PPE. In March and April 2020, his requests to work from home and to be placed on furlough, due to feeling uncomfortable using public transport and working in the office, were denied due to the nature of his work, which was not possible to do from home, and business needs. He was told he could take paid holiday leave or unpaid leave if he wished to stay at home. Mr Accattatis declined and, after further requests to be furloughed, he was dismissed.
In Gibson, the claimant Mr Gibson was furloughed from his position as a pub chef in March 2020. Whilst on furlough and in the run up to the prospective re-opening of the restaurant sector, he was asked by his employer to undertake some work. Mr Gibson raised concerns that his return to work may cause him to pass coronavirus to his father, who was shielding.
When expressing concerns over his employer failing to provide personal protective equipment and to create a COVID-secure working environment, he was also told to "shut up and get on with it". Mr Gibson was dismissed by text message on 30 May 2020 and received no notice pay or accrued holiday pay. Part of the text message read that the employer was changing the format and running of the business and would be running a smaller team after lockdown.
In both cases the employees did not have the requisite two years' continuous service to bring a claim against their employers for ordinary unfair dismissal. They therefore brought claims for, amongst other things, automatic unfair dismissal under section 100(1)(e) of the ERA 1996, which provides employees with protection from dismissal for taking (or proposing to take) appropriate steps to protect themselves or others where they reasonably believe there is serious and imminent danger.
What Were the Tribunal's Findings?
The Tribunal found in Accattatis that, although there were circumstances of danger which an employee could reasonably have believed to be serious and imminent, Mr Accattatis's demands to work from home or be furloughed were not appropriate steps to protect himself from danger. His employer was justified in concluding that Mr Accattatis could not work from home and did not qualify for the furlough scheme and there was the option to take holiday or unpaid leave available to him which he declined. As such his claim was dismissed.
In Gibson however, the Tribunal found that Mr Gibson had taken steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger. It therefore held that he had been automatically unfairly dismissed under section 100(1)(e) of the ERA 1996 or, as the wording of the employer's text message suggested a possible redundancy situation, alternatively under section 105(3) of the ERA 1996. This was because Mr Gibson was unfairly selected for redundancy under section 105(3) because he had taken the above steps.
The Tribunal also considered whether the matters raised by Mr Gibson relating to the to lack of the PPE equipment and other COVID-secure workplace precautions amounted to the making of a public interest disclosure under the whistleblowing provisions of the ERA 1996. It held however that Mr Gibson was only concerned about how the lack of workplace precautions might cause his father to contract the virus, rather than him being concerned about it being a matter of public interest. The whistleblowing claim was therefore dismissed.
What Does This Mean For Employers?
The cases of Accattatis and Gibson make it clear that whether or not situations relating to the coronavirus pandemic will engage the provisions of section 100(1)(e) of the ERA 1996 will turn on the particular facts and merits of each case.
The case of Accattatis highlights that section 100(1)(e) of the ERA 1996 is not automatically satisfied in instances where employees do not feel comfortable attending the workplace due to coronavirus-related concerns, whilst the case of Gibson highlights that the steps employees take due a lack of lack of PPE equipment and COVID-secure precautions in the workplace will ultimately support their automatic unfair dismissal claim.
Such measures will therefore help to reduce the risk for employers of dismissed employees successfully bringing such claims, particularly in response to an increasing number of automatic unfair dismissal claims being brought to the Tribunal in the context of the coronavirus pandemic.