COVID-19: Employee who refused to return to work to protect his vulnerable father was unfairly dismissed

Among the trickle of COVID-19 related employment claims which have been decided by the employment tribunals, there has so far been a very low success rate amongst employees. The published cases indicate that tribunals are taking a fairly robust attitude towards health and safety issues in the context of coronavirus. However, in this recent case the employee successfully persuaded a tribunal that his concerns about the safety of his workplace rendered his subsequent dismissal automatically unfair.

Gibson v Lothian Leisure (Case No. 4105009/2020)

Facts

Mr Gibson was employed as a restaurant chef. He was good at his job and had been promoted. As was the case for many businesses, the restaurant had to shut in March 2020 because of the lockdown restrictions and Mr Gibson was furloughed.

In April 2020, the restaurant asked Mr Gibson to ‘come in and help out for a bit’ in the expectation that some of the lockdown restrictions would be lifted. Mr Gibson was reluctant to do so. He lived with his father who had several medical conditions including a brain tumour, Colitis and Addison’s disease and was shielding during the lockdown. He informed his employers that he was worried that the workplace was not safe and that if he caught COVID-19, he could pass it onto his clinically extremely vulnerable father. The company did not provide any PPE for staff and, according to Mr Gibson, had no intention of adopting measures to create a COVID-secure working environment.

Mr Gibson’s reluctance to return to work didn’t go down well. He was told to ‘shut up and get on with it’. He refused to return to work and was dismissed via text in May 2020. The company intimated that it was going to re-organise the restaurant staff and that he was, in effect, being made redundant.

Mr Gibson argued that he had been automatically unfairly dismissed because he had raised concerns about the safety of his workplace. He also argued that he was entitled to notice pay, accrued annual leave and pension contributions.

The law

Under sections 44 and 100 of the Employment Rights Act 1996, employees are protected from being subjected to a detriment (such as being suspended or having their pay deducted) or being dismissed for exercising their right to leave their workplace. This is a day one right and, unlike ‘ordinary’ unfair dismissal claims, employees don’t need two years’ service.

To be protected, the employee must have a ‘reasonable belief’ that their workplace poses a serious and imminent threat to them, or to others – including members of the public and their own families. That’s judged at the date the employee decided not to return to work – rather than with the benefit of hindsight.

Decisions

The tribunal was satisfied there were circumstances of danger which were serious and imminent at the time Mr Gibson raised concerns. It found that Mr Gibson believed that his workplace was unsafe and posed a real danger to the health of his clinically extremely vulnerable father. It said that Mr Gibson took appropriate steps to protect his father by raising the issue of PPE with his employer.

It concluded that Mr Gibson was either dismissed because he took steps to protect his father, or that he was selected for redundancy because he’d taken steps to protect his father. Either way, this satisfied the requirements of section 100 of ERA 1996.

Award

Mr Gibson was awarded a basic award of £6,562 and £14,500 compensation reflecting the fact that he was out of work for 29 weeks. He also received one week’s notice pay and £1,200 for accrued holiday. He was compensated for pension contributions his employer had deducted from his salary but had not paid into a pension scheme.

Pro Employment Law

Formed in 2017, following significant legislative changes designed to increase competition within the legal services marketplace, Pro Employment Law is a progressive set of barristers’ chambers, consisting only of experienced employment law barristers, offering a full range of specialist advisory, case management, and advocacy services directly to the public through the Public Access scheme. We supply our legal services exclusively in the area of Employment Law to clients located across England & Wales. All of the legal services we supply are covered by professional indemnity insurance with Bar Mutual.