Case Update - Did employer unfairly dismiss employee for failing to attend workplace due to lockdown?

Employees can be automatically unfairly dismissed if the reason or principal reason is that:

"….in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

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."

This is a key protection set out in Section 100 (1) (d) – (e) ERA 1996

What does this mean for employers?

In this case the employee found himself stuck in Italy under their national lockdown. He could not travel home due to the dangers of contracting and/or spreading COVID-19 and he communicated all that clearly to his employer and awaited their direction.  He also offered to work remotely and, in reply, his employer dismissed him for taking unauthorised leave.

The Employment Tribunal held that the decision was automatically unfair because, put simply, the employee had:

• established and communicated the serious risk of harm or danger and it was proven to be a reasonably held belief by the employee that he would be in danger that was indeed serious/imminent;

• taken appropriate steps to protect himself and others by isolating and not travelling and contacting his employer for instruction; and

• it then followed that it was clear that his employer’s reason for the dismissal was indeed because the employee had communicated the difficulties and danger and, thus, needed to stay in Italy and asserted he needed to work from there.

The dismissal was a breach of section 100 of the Employment Rights Act 1996 and provides us with a recent case example of where the Employment Tribunal is willing to protect an employee who refused to attend work where they can show they reasonably held a belief that they or others were in serious/imminent danger.

In cases of personal or family vulnerability during the pandemic, or even another safety reason, employers should pause, assess and take advice on the basis for any action taken.  If not, awards can be very high in such cases.

For more information contact your team contact, call the office on 0194 360 295 or add your comment and queries below and a member of the team will get back to you.