Previously, only employees were offered protection under section 44 of the Employment Rights Act 1996 ('the Act'). The exclusion of workers from this protection has been brought in to the spotlight and challenged during the pandemic, and has been held in recent case law as failing to properly implement EU law.
Accordingly, the protection has been widened to capture workers and as of 31 May 2021, both employees and workers can now bring claims if they are subjected to a detriment for;:
Workers are defined as those who have entered into:
This protection will not extend to workers in respect of acts which occurred before 31 May 2021.
As a result of the new Order, the ACAS guidance 'Working safely during coronavirus (COVID-19)' has also been updated to reflect this change and states that workers should be protected from any detriment if they "reasonably believe being at work or doing certain tasks would put them in serious and imminent danger or if they take action over a health and safety issue". The ACAS guidance also confirms that workers will have the right to make a claim to an employment tribunal if they are subjected to such detriment after 31 May 2021.
Schools should ensure that any relevant policies are updated to reflect these changes so that workers are protected from any detriment if they reasonably believe being at work or doing certain tasks would put them in serious and imminent danger or if they take action over a health and safety issue. Extra thought will also be required when responding to health and safety concerns raised by workers, or situations where workers refuse to attend the workplace because of health and safety concerns.
The prominence of health and safety claims and the protection against detriment on health and safety grounds afforded by section 44 has been highlighted during the pandemic as many staff have raised concerns about transmission of COVID-19 and the safety of their workplace. As well as seeing growing numbers of health and safety detriment claims, we are also seeing a number of cases coming through the tribunals regarding claims of automatically unfair dismissal by employees who have raised health and safety concerns, or taken steps to protect themselves in circumstances where they reasonably believe they are in imminent or serious danger. These claims are brought under section 100(1) of the Act and this protection is only available to employees.
Two recent contrasting employment tribunal decisions highlight that employers who implement COVID-secure measures may find themselves better placed to defend allegations of automatic unfair dismissal in the context of the pandemic.
The cases of Accattatis v Fortuna Group (London) Ltd ('Accattatis') and Gibson v Lothian Leisure ('Gibson') both concerned claims brought by former employees pursuant to section 100(1)(e) of the Employment Rights Act 1996 which protects employees against dismissal for exercising their rights to take steps to protect themselves or others where they reasonably believe there is serious and imminent danger.
In the case of 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. The tribunal held he was was not automatically unfairly dismissed under section 100(e) of the Act.
In Gibson however, the employee's automatic unfair dismissal claim under the same provision of the Act was successful after the employee was dismissed for raising concerns about the effect of him returning to work on his shielding father. The background to this case was that the claimant (Mr Gibson) was furloughed from his position as a 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. However, Mr Gibson raised concerns that his return to work may cause him to pass coronavirus to his father, who was shielding. In particular, Mr Gibson expressed concerns over a lack of PPE and the employer's failure to create a COVID-secure working environment. After having been told to "shut up and get on with it", Mr Gibson was dismissed by text message receiving 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 sought to argue that they had been automatically unfairly dismissed under section 100(1)(e) Act which does not require any minimum length of service.
A key distinction in the findings of the tribunal in these two cases appears to be the steps taken by the employees to protect themselves and whether the steps taken were appropriate, as well as the conduct of the employers.
In Accattatis, the tribunal found that although there were circumstances of danger which an employee could reasonably have believed to be serious and imminent, Mr Accattatis' demands to work from home or be furloughed were not appropriate steps to protect himself from danger. His employer was justified in concluding that he 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, Accattatis' claim was dismissed.
In Gibson however, the tribunal found that the concerns raised by Mr Gibson around lack of PPE and COVID-secure measures did amount to appropriate steps taken 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 Act. Or, as the wording of the employer's text message suggested a possible redundancy situation, that alternatively he had been automatically unfairly dismissed under section 105(3) of the Act on the basis that he had been unfairly selected for redundancy because he had taken the above steps.
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 Act will turn on the particular facts and merits of each case.
The case of Accattatis highlights that employees who indicate that they do not feel comfortable attending the workplace due to coronavirus-related concerns will not necessarily automatically meet the requirements of section 100(1)(e) and that thought will need to be given to the steps they have taken to protect themselves/others. Gibson however, highlights that steps taken by employees due to a lack of PPE equipment and/or COVID-secure precautions in the workplace may be deemed as 'appropriate steps' and therefore, may support an automatic unfair dismissal claim.
In view of the above, schools should ensure that they implement appropriate COVID-secure measures to help mitigate the risk of successful automatic unfair dismissal claims in the context of the coronavirus pandemic.