Throughout the pandemic employers have faced a myriad of new challenges including remote working, vaccination and use and implementation of new technologies. As a result, Human Resources professionals and employment lawyers alike have grappled with complex and novel questions in never-seen-before circumstances. We are now seeing the fruits of COVID-19 related judgements coming through the employment tribunal system, which provide some important developments and clarifications in the areas of unfair dismissal, discrimination, application of the Coronavirus Job Retention Scheme and redundancy, amongst others.
In this article, we will focus on COVID-related developments in unfair dismissal case law, which provides new practical applications of the law on dismissals in health and safety related circumstances, circumstances of dismissals for misconduct, constructive dismissal, or the catch-all of ‘some other substantial reason’ (“SOSR”) relating to COVID-19.
Unfair Dismissal Framework
Generally, an employee who has completed the applicable two-year qualifying period of service has the statutory right not to be unfairly dismissed under the Employment Rights Act 1996 (“ERA 1996”).
The dismissal of a qualifying employee will be unfair unless:
- the employer can show that the reason (or principal reason) for the dismissal was one of the five potentially fair reasons: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction, or SOSR (section 98(1) and (2), ERA 1996); and
- the tribunal finds that, in all the circumstances (including the employer’s size and administrative resources) the employer acted reasonably in treating that reason as a sufficient reason for dismissal (section 98(4), ERA 1996).
Dismissals for certain reasons are also deemed “automatically unfair” and, in many such cases, employees do not need a qualifying period of employment to bring a claim. These include dismissals for reasons connected to health and safety activities and flexible working requests – both relevant to COVID-19. For example, an employee without the qualifying period of service may claim automatic unfair dismissal where they were dismissed for:
(a) telling employers about circumstances at work which they reasonably believe are harmful or potentially harmful to health and safety;
(b) leaving work or refusing to go to work where they reasonably believe there to be circumstances of serious and imminent danger which they could not reasonably be expected to avert; and
(c) taking appropriate steps to protect themselves or others in circumstances of danger that they reasonably believe to be serious and imminent,
(section 100, ERA 1996).
Unfair Dismissal: Misconduct
Dismissal for refusing to be vaccinated
The question of whether it was unfair to dismiss an employee for refusing to be vaccinated was put to the test in Allette v Scarsdale Grange Nursing Home Ltd.
The Claimant was employed as a care assistant in a nursing home. In January 2021, the nursing home required all staff to be vaccinated against COVID-19, but there was no such requirement in the Claimant’s employment contract nor was there, at that time, a statutory restriction on the employment of unvaccinated workers in care homes. The Claimant refused to be vaccinated and, as a result, she was subject to disciplinary proceedings on the basis that she had refused to follow a reasonable instruction to have the vaccination. During the disciplinary hearing, the Claimant argued that her refusal to have the vaccine was due to her religious belief of Rastafarianism. The nursing home disputed that this was the true reason for her refusal as the first time she had raised it was during the hearing. Ultimately, she was dismissed for gross misconduct, and brought claims for unfair and wrongful dismissal.
The Employment Tribunal held that the Claimant was fairly dismissed and that the employer was acting reasonably. The Tribunal found that the Claimant’s reason for her refusal to accept the vaccine was based on an unsubstantiated belief that there was a conspiracy related to the vaccine rather than a religious belief, and this reason was not reasonable. It is notable that although at the time of this case there was no legal requirement that employees in a care homes should be vaccinated, the Tribunal emphasised that this requirement was entirely reasonable given the risk to residents and substantial number of deaths in care homes during the pandemic. The Tribunal further found that the Claimant knew she represented a risk to others and her actions amounted to gross misconduct.
Interestingly, the Tribunal considered that the instruction for employees to be vaccinated was an interference with the Claimant’s right to respect for private and family life under Article 8 of the European Convention of Human Rights, but the employer had a legitimate aim for this requirement: namely, to protect the health and safety of residents in a care home during the pandemic.
This case makes clear that a refusal to be vaccinated may provide an employer with a fair reason for dismissal. However, the Tribunal emphasised that while it found that the Claimant’s refusal to comply with the employer’s instruction to be vaccinated amounted to gross misconduct, that does not mean that refusing to be vaccinated would amount to misconduct in a case with different facts. For example, different considerations may apply to a larger employer where less draconian measures could have been used (e.g., redeployment to a different sector, or unpaid leave). This decision is a reminder that the Tribunal will determine whether the employer acted reasonably in all of the circumstances, including a consideration of whether there were alternative actions that could have been taken to avoid dismissal.
Unfair Dismissal: SOSR
Carer unfairly dismissed for going to the pub shortly before lockdown
In Meynell v Stephenson, the Claimant was a carer looking after the Respondent’s daughter who had cerebral palsy, and who was therefore in the vulnerable category during COVID-19. On 20 March 2020, when the UK prime minister had told people to avoid pubs, bars, clubs and restaurants, the Claimant went to the pub. The Respondent was concerned about this as it put her daughter’s safety at risk, but was reassured by the Claimant that the pub had been very quiet. England went into lockdown on 23 March 2020, and the Claimant was furloughed. On 10 August 2020, she was told she was being dismissed for SOSR due to a breakdown in her relationship with her employer. She brought a claim for unfair dismissal.
The Tribunal held that this dismissal was unfair. It found that the main reason for the Claimant’s dismissal was the Respondent’s belief that she had acted unreasonably in going to the pub on 20 March. However, as at that date, England was not in a national lockdown, so it was not unlawful to go to a pub, and the Respondent had not instructed her not to go. As a result, the Claimant was not in breach of any instruction from her employer, nor had she contravened any COVID-19 legislation. The Tribunal recognised the special nature of personal care relationships but held that a reasonable employer would not have found the Claimant’s actions sufficient to trigger an irretrievable breakdown in the relationship. However, the Tribunal did find that the Claimant had contributed to her dismissal by going to the pub at a time when the Prime Minister had urged people to avoid them. As a result, the Tribunal made a deduction to the Claimant’s compensatory award.
Employers should note that a Tribunal will take into account the public health warnings at the time dismissal decisions were made. Actions that contravene that guidance may not qualify as SOSR for a dismissal where those actions are not ‘illegal’ (even if, as the Tribunal found, contravening that guidance was unwise when working as a carer). However, it is relevant that the facts of this case took place in early 2020, before the UK had taken any formal steps to go into lockdown, so government warnings were yet to be formulated into strict, enforceable guidance and the risks related to COVID-19 and the number of related deaths were low. This contrasts with Allette (discussed above), which relates to actions in late 2020 and early 2021, when the UK was in a full national lockdown and the scale of the pandemic and resultant death roll were widely known.
“Fire and Rehire”: Refusal to agree changes to employment contract
A key challenge for employers during the pandemic was how to furlough employees in accordance with the Coronavirus Job Retention Scheme, or otherwise make changes to employees’ terms and conditions of employment such as pay reductions and/or reductions in working hours. Where employers were unable to agree the changes with employees, some resorted to “fire and rehire”; where the employer dismisses an employee with an offer of re-engagement on the new terms. While there are legal risks associated with this approach, it is not unlawful per se. A sound business reason for requiring the change in terms can constitute SOSR, and therefore a potentially fair reason for dismissal.
This is what happened in Khatun v Winn Solicitors Ltd, where an Employment Tribunal found that a solicitor had been unfairly dismissed for refusing to agree changes to her employment contract that would have given her employer the freedom to unilaterally reduce her pay and hours by up to 20%, or place her on furlough.
The employer placed half of its staff on furlough at the start of the pandemic, and required the remaining staff to oversee the furloughed staff members’ cases. The Claimant was selected to continue working, and was told that all staff would need to agree to vary their contracts or face dismissal. The proposed variation would allow the firm to place an employee on furlough or unilaterally reduce their hours and pay by up to 20%, on five days’ notice. The Claimant said that she was unwilling to agree to the variation as she was continuing to perform her job. Her employment was terminated without notice or payment in lieu of notice. She brought a claim for unfair dismissal.
The Tribunal held that this dismissal was unfair, because whilst the firm had business reasons for the variation, which did meet the test for SOSR, it had not acted reasonably in dismissing the Claimant for not accepting the changes. Crucially, the firm had not consulted with her, nor had they explored alternatives to dismissal. They did not offer her a right of appeal, but dismissed her within 48 hours of sending her the varied contract to sign.
These “fire and rehire” tactics have risen to prominence as a result of the pandemic. Khatun v Winn Solicitors demonstrates that even where an employer shows that it has valid business reasons to vary the employment contract, a dismissal for failure to accept the new terms will almost always be unfair where it has not followed a procedure of any kind, consulted with affected employees, or considered any reasonable alternatives. Employers should ensure that if they are using “fire and rehire” tactics, they are following all due processes and consulting with employees, to minimise the risk of successful unfair dismissal cases.
Constructive dismissal
Requirement to attend the workplace
Another emerging issue for employers during the pandemic has been the question of when they can require employees to attend the workplace. In Regnante v Essex Cares Ltd, the Claimant worked for a company that provided care and equipment to people in their homes. The Claimant’s husband was clinically extremely vulnerable to COVID-19 and the Claimant and her husband were extremely careful and took extensive measures to ensure their risk of infection was very low.
Initially, the Claimant was allowed to work from home, despite others in her role having to return to the office. On 5 April 2020, she was required to cover a shift at the employer’s call centre for a colleague who had gone into self-isolation due to constant coughing, and whose son was in a COVID-19 ward in hospital. She told her manager that she would not come to the office again because she was very worried she would bring COVID-19 home to her husband. In mid-April 2020, she was told to return to working in the office (with occasional home working) or take 12 weeks’ unpaid leave. Instead, the Claimant resigned and brought a claim for constructive unfair dismissal.
The Tribunal upheld the claim. The government guidance in April 2020 was that everyone, and in particular those who were medically vulnerable, should stay at home except for those who could not work from home. It was possible for the Claimant to work from home and was very difficult for staff to socially distance in the employer’s small office. The Tribunal found that the employer had not helped the Claimant work from home in any way, nor spoken to her to discuss ways to resolve the situation she was in. Instead, it had taken the view that unless the Claimant could carry out all of her tasks from home, she should be in the office (i.e., including her client facing tasks that could have been done by another employee). This was not justified nor was it reasonable: it was held that the employer had not recognised the Claimant’s reasonable belief that if she came into the office, she would be putting her husband’s life at risk. Accordingly, she had been constructively dismissed, and the dismissal was automatically unfair pursuant to section 100 ERA 1996.
This case emphasises the importance of consulting with employees and taking their personal circumstances into account when requiring them to attend the office during the pandemic. It must be noted that the outcome of this case is heavily dependent on the COVID-19 situation at the time, with restrictions on anyone, and especially the medically vulnerable, leaving the house. Additionally, there were no vaccines in use at the time the Claimant resigned and brought her claim, so the Tribunal may well have reached a different decision if the events in question had taken place later in the pandemic.
Automatic Unfair Dismissal: Health & Safety
Leaving or staying away from workplace over concerns about own or others’ health
In contrast with the case of Regnante, in Rodgers v Leeds Laser Cutting Ltd the Employment Tribunal held that it was not automatically unfair to dismiss an employee who refused to attend work over concerns about the risk of COVID-19 to his vulnerable children.
The Claimant refused to attend work during the first lockdown because he had vulnerable children who would become very ill if they were to contract COVID-19. His employer dismissed him, andthe Claimant claimed he had been automatically unfairly dismissed under section 100 ERA 1996 because he had refused to return to the workplace in order to protect himself from danger, which he had reasonably believed was serious and imminent and which he could not reasonably have been expected to avoid. This claim was dismissed by the Tribunal on the grounds that the Claimant’s concerns about the virus were not directly attributable to the workplace. He had also worked in a pub during the pandemic and did not wear a face mask or practice social distancing.
The Claimant appealed. The Employment Appeal Tribunal (“EAT”) held that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented him from returning to work. However, on the particular facts, the EAT held that the Claimant did not reasonably believe this was the case, either at work or outside of the workplace.
This is an interesting case for employers, as it demonstrates that it can be a reasonable response to dismiss an employee who refuses to attend work because of perceived danger to the health and safety of others. However, the outcome of this case was heavily influenced by the fact that the Claimant had not taken reasonable steps to avoid such danger himself, such as wearing a mask or observing social distancing, nor had he raised specific concerns to his employer about why he felt his workplace was unsafe. If he had taken protective steps, and had clearly articulated to the organisation why he felt unsafe, the case would likely have had a different outcome.
Raising general concerns about COVID-19 following instruction to work from home
In Preen v Coolink and Mullins the Claimant raised concerns with his manager about going to work during the lockdown in March 2020. He was unable to carry out his role from home, as he was a refrigeration and air conditioning engineer. However, he wanted to follow the government’s then-current guidance to stay at home at all times. He specified to his employer that he would go into work if the work was urgent or essential. His employer then purported to dismiss him for redundancy. He claimed unfair dismissal.
The Tribunal held that the employee had clearly communicated that he had concerns about going to the workplace during a national lockdown. It was held that he reasonably believed that if he continued to carry out this non-essential work, he would put himself and others at risk, and that communicating this to his boss was the reason he was dismissed. Therefore, the Tribunal held that he had been automatically unfairly dismissed within section 100 ERA 1996. It is important to note, however, that the Tribunal made clear that that COVID-19 does not automatically create circumstances of serious and imminent danger and ‘something more’ is likely to be required, such as unsafe working practices or medical vulnerability.
Takeaways
As always, these unfair dismissal cases arising from COVID-19 are fact specific in that they relate to specific government guidance and national lockdowns in the UK before the vaccine roll-out. However, there are general themes that employment lawyers and HR professionals should take note of.
Importantly, employers should align their actions with the prevailing official government guidance on public health as much as possible. In all the cases outlined above, the Employment Tribunals supported employers’ or employees’ actions where these were taken in accordance with the public health advice and relevant COVID-19 regulations at the time, and particularly where a formal risk assessment had been carried out and the employer’s motive was to protect employees. For example, in Allette, although there was no legal requirement for employees of care homes to be vaccinated, the Tribunal held that the imposition of this requirement was reasonable given the risk involved with working in a care home with medically vulnerable patients in the midst of a global pandemic. Where the opposite is true, for example, where an employer required an employee to return to the office before this was advised by public health authorities and failed to take account of an employee’s clearly expressed concerns, the Tribunal has generally found against the employer.
Employers must ensure they are making informed decisions on the protection of employees by carrying out risk assessments at the workplace and keeping on top of the latest official health and safety guidance. And pandemic or no pandemic, where there is a valid reason to dismiss an employee, ensuring that all procedures are followed correctly is key to minimising the risk of an unfair dismissal claim.
For further information, please contact:
Alison Dixon, Partner, Bird & Bird
alison.dixon@twobirds.com
