By Danielle Parsons, Partner And Rebecca Denvers, An Associate And Practice Development Lawyer In The Employment Team At Irwin Mitchell

Danielle Parsons and Rebecca Denvers compare two recent decisions in which the claimants argued that their dismissals were automatically unfair under the ‘serious and imminent danger’ provisions in the ERA

Tribunals are starting to make decisions about COVID-19 related claims which were brought in the early stages of the pandemic. These include two recent claims in which employees raised concerns about health and safety issues in the workplace and were then dismissed by their employers.

Contrasting decisions were reached in Accattatis v Fortuna Group (London) Ltd [2021] and Gibson v Lothian Leisure [2021].

These rulings identify important lessons for employers and in-house advisers.

In both these cases, the employees involved did not have the two years’ continuous service required to bring an ordinary unfair dismissal claim. Instead, they claimed automatic unfair dismissal under s100(1)(e) of the Employment Rights Act 1996 (ERA). This requires an employee to show that the reason for their dismissal was that:

… in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

Oudahar v Esporta Group [2011] confirmed that to be protected under s100(1)(e) ERA, the following criteria must be met:

• there must be circumstances of danger which the employee reasonably believed to be serious and imminent;
• the employee took or proposed to take appropriate steps to protect themselves or other people from danger; and
• the employee took or proposed to take appropriate steps to communicate those circumstances to their employer by appropriate means.

When these criteria are met, it will next be a case of asking whether the sole or principal reason for the employee’s dismissal was that they had taken or proposed to take such steps.

If so, the dismissal will be automatically unfair.

It is irrelevant whether the employer agrees or disagrees with the employee that the circumstances of danger were serious, as the tribunal must consider the employee’s state of mind at the time.

Accattatis

Mr Accattatis was employed as a sales and project co-ordinator for a company which sold and distributed personal protective equipment (PPE). The company’s staff were considered to be 'key workers' and the business remained open throughout the first lockdown.

In early March 2020, the company started to take measures to protect its staff in line with what was known about the transmissibility of the virus and the government advice at that time. The company also wrote to all staff to confirm that it would respect any employee’s desire not to attend work at that time and that any absence should be taken as either unpaid leave or holiday.

Mr Accattatis developed COVID symptoms on 30 March 2020 and self-isolated. He told his employer that he expected to return to work on 6 April, but he continued to feel unwell and obtained two self-isolation notes to explain the reasons for his continued absence. Shortly before Mr Accattatis was due to return to work, he wrote to his manager asking to be furloughed. He tried to persuade his employer that furloughing him would be a ‘win win’ situation (because he would receive 80% of his normal pay instead of statutory sick pay and the company could recoup that money from the government).

The employer, unsurprisingly, took a different view. At that time, the demand for PPE was unprecedented due to severe shortages, with some NHS staff wearing bin bags. Fortuna urgently needed staff working to meet this demand and felt that Mr Accattatis should return to work as soon as he was well.

Undeterred, Mr Accattatis argued that the government had told people to work from home if they could, that he was still suffering from flu-like symptoms and that he did:

… not feel comfortable [about] the idea of using public transport and coming into the office during this lockdown.

He then suggested that the only ‘logical’ options were allowing him to work from home (although he gave no indication about how this would work given that part of his job involved being physically present in the warehouse) or placing him on furlough. He concluded that:

Both solutions work for me. Up to you which one you find more convenient. 

After his request was again rejected (and in a marked change of tone), he asked his employer to reconsider its stance on furlough as he needed to pay his bills while he remained unwell. A few days later, he emailed his line manager to say that he had spoken to someone on the Coronavirus Job Retention Scheme helpline who, he claimed, confirmed that businesses could use the furlough scheme to pay staff who were self-isolating. Twenty minutes later, his line manager emailed him to terminate his employment due to:

… a general ongoing failure on your part over a period of many months to support and comply fully with our company policies and guidelines.

Decision

Based on government announcements in February and March 2020, the tribunal found that there were circumstances of danger which an employee could reasonably have believed to be serious and imminent. It also accepted that, subjectively, Mr Accattatis reasonably believed the danger to be serious or imminent.

However, the tribunal held that he had not taken appropriate steps to protect himself, or other people, from the danger. The judge said that his demands for furlough (which he didn't qualify for because he was not shielding and there was no reduction in his workload) or working from home (which wasn't feasible) were not appropriate steps to protect him from the danger. The employer had presented Mr Accattatis with the option of taking unpaid leave or holiday and he was only seeking to be placed on furlough for financial reasons.

Mr Accattatis did not therefore meet the test to be protected under s100(e) ERA and his claim for automatic unfair dismissal failed.

Gibson

Mr Gibson was employed as a restaurant chef; he was successful in his role and had been promoted. As was the case for many businesses, the restaurant was faced with lockdown in March 2020 because of the pandemic. During the second week of March 2020, Mr Gibson was placed on furlough.

In the run up to the end of lockdown, the restaurant contacted Mr Gibson and asked him to come back in and ‘help out for a bit’. Mr Gibson lived with his father, who was shielding due to several medical conditions, including a brain tumour, colitis and Addison’s disease. Mr Gibson raised concerns about his father catching COVID-19 from him as the company did not provide any PPE and had no intention of requiring staff to take precautions to create a COVID-secure workplace.

In response, Mr Gibson was told to ‘shut up and get on with it’. At this point, he started to believe that the company saw him as a nuisance, despite his previously good relationship with them. His employment was then terminated with immediate effect via text without any prior discussion or any process at all. The company’s explanation for the termination was that it was changing the format of the business and running it with a smaller team.

Decision

The tribunal was again satisfied there were circumstances of danger which were serious and imminent. It found that Mr Gibson held a subjective belief that this was so, given his concerns about his vulnerable father. It was also found that Mr Gibson took appropriate steps to protect his father by raising the issue of PPE with his employer.

The tribunal concluded that the real reason for Mr Gibson’s dismissal was the steps he took to protect his father and he therefore succeeded in his automatic unfair dismissal claim.

Lessons for employers and in-house advisers

Both cases show that it has not been difficult for employees to establish a reasonable belief (both objectively and subjectively) that there were circumstances of danger in the early days of the pandemic which were serious and imminent. This seems to be a low hurdle for claimants so far.

However, it is important to note that early 2020 was a time when virus levels were high, there were no vaccines, there were high numbers of hospitalisations and fatalities and much less was known about COVID.

Over a year later, in July 2021, it seems that the UK vaccination programme has been quite successful. There are currently lower levels of the virus circulating and declining fatalities, notwithstanding the COVID variants. Once employees who have been working from home return to work, it may become more difficult for them to establish circumstances of serious and imminent danger and succeed in health and safety dismissal claims.

The more challenging legal hurdle for claimants to overcome to obtain protection under s100(1)(e) ERA will be demonstrating that they took, or proposed to take, appropriate steps to protect themselves or others from danger and to communicate the circumstances of this to their employer.

Accattatis shows that staff expressing unspecific anxieties about their working environment or travel arrangements will not be sufficient. Employees will normally be expected to explain clearly to their employer why they believe their workplace (or possibly their commute) is dangerous. They should also give it an opportunity to explain what steps it has taken to protect them and time to consider whether it can do anything else to protect them and address those concerns. It is not enough for the employee to establish that there is a risk – they must be able to show that the risk is serious and imminent despite anything they and their employer can do to reduce it.

Conversely, in Gibson, the claimant was clear and specific about the risks to his father’s health due to the lack of COVID-secure measures. The decision shows employers exactly what not to do in response to such clear employee concerns. The company held no discussions with Mr Gibson, did not try to address his concerns and put no additional safety measures in place. In contrast, Mr Accattatis’s employer acknowledged his concerns on three occasions and made reasonable alternative suggestions to protect him from the perceived danger.

Both cases make it clear that whether or not the provisions of s100(1)(e) ERA are engaged will depend on the particular facts and merits of each case.

Although these first instance tribunal decisions are not binding on any other tribunals, they provide important and useful guidance for employers. Mr Accattatis’ case highlights that s100(1)(e) cannot be automatically satisfied just because employees are not comfortable attending their workplace due to COVID concerns. Mr Gibson’s case highlights the importance of taking employees’ concerns seriously and taking reasonable steps to alleviate those concerns.

Planning the return to work

These cases suggest that many people may be worried about returning to their workplace.

In planning any return, employers should:

• study and comply with the updated government and public health guidance – carrying out regular risk assessments and having clear safety measures in place will make employees more confident about returning;
• consider the physical, emotional and mental wellbeing of their workforce;
• actively consult with and engage staff when planning the return to the workplace – holding team and one-to-one meetings is likely to help ensure that individual needs are considered;
• encourage a speak-up culture around COVID-19 so employees feel that any concerns they have will be listened to and addressed;
• plan their approach to testing and vaccination, which are likely to be key points of concern for many workers; and
• consider whether to implement a phased or partial return to work to ease the transition or introduce a hybrid working strategy.

Case References

Accattatis v Fortuna Group (London) Ltd [2021] ET 3307587/2020

Gibson v Lothian Leisure [2021] ET 4105009/2020

Oudahar v Esporta Group [2011] UKEAT/0566/10/DA

This article first appeared in Employment Law Journal www.lawjournals.co.uk