Employee Stuck Abroad in March 2020 Wins Automatic Unfair Dismissal Claim
In a recent tribunal claim, a worker who stayed in Italy at the beginning of the pandemic and who was dismissed by his employer was successful in bringing a claim for automatic unfair dismissal.
Background
Under s100(1)(e) of the Employment Rights Act 1996, an employee is automatically unfairly dismissed if the reason (or, if more than one, the principal reason) for their dismissal is that in "circumstances of danger" which the employee "reasonably believed to be serious and imminent", they took (or proposed to take) "appropriate steps to protect themselves or others from the danger".
There is no requirement to have two years of continuous service to bring a claim.
What Happened in This Case?
Mr Montanaro was employed by Lansafe Ltd from 17 February 2020.
Mr Montanaro genuinely believed he had permission to take holiday on 9 and 10 March 2020 for his sister's wedding in Italy, and so travelled there to attend.
However, when on 9 March 2020, Italy went into lockdown, the UK Government's guidance required 14 days' isolation on return from Italy. Mr Montanaro's flight back to the UK was due to leave on the morning of 10 March, and so he contacted his employer to inform them of the restrictions, and requested guidance on what he should do, given he was not able to attend the office.
On 10 March Lansafe emailed Mr Montanaro telling him to await further instructions. Mr Montanaro did not board a flight back to the UK as he continued to await instructions. He continued to work remotely, contacting his key client to confirm they were happy for him to do so (which they were) and making several attempts to contact Lansafe.
On 11 March, Lansafe sent a letter to Mr Montanaro in London (despite knowing he was in Italy) advising that he had been dismissed with effect from 6 March for failing to follow company procedures, and for taking unauthorised leave. The letter was factually incorrect, claiming that Mr Montanaro had made no contact with Lansafe and also made reference to a disciplinary hearing that had never been held.
Although it was admitted that Mr Montanaro did not follow the correct procedure to request holiday as laid out in Lansafe's staff handbook, he had in fact not yet been provided with the handbook and so followed the informal procedure he had previously followed to take annual leave. This apparently involved verbal confirmation from the employer, who allegedly advised Mr Montanaro to follow up with an email including the proposed dates (which Mr Montanaro did). The tribunal therefore acknowledged that this was a genuine misunderstanding on Mr Montanaro's part, and that therefore his behaviour did not constitute gross misconduct of the kind to justify dismissal.
The Tribunal held that the real reason for Mr Montanaro's dismissal were the appropriate actions he took in circumstances he reasonably believed were dangerous. In particular, reasonable actions he took included communicating the difficulties posed by the pandemic and proposing to work remotely from Italy until circumstances changed.
What Does This Mean for Employers?
Although this case does turn on its facts, and it was clear that the employer here failed to provide an adequate reason for the dismissal, and acted unreasonably in dismissing Mr Montanaro, this case is noteworthy for a number of reasons:
- It is a reminder that the COVID-19 pandemic is considered to be a circumstance of danger under s100(1)(e) of the Employment Rights Act 1996 and that in many cases, that danger will be deemed to be 'imminent'.
- It shows that employers should act cautiously when attempting to dismiss those who failed to turn up to work due to COVID-19, or because they were unable to leave their location due to a national lockdown.
- Finally it is a warning to employers to always follow the correct procedure where possible when making dismissals, even during times such as a the COVID-19 pandemic.