Employment tribunals have been deciding coronavirus-related cases throughout 2021. We set out 10 key first-instance rulings related to the pandemic from which employers can learn lessons.
1. No blanket right to refuse to attend work during pandemic
Key case: Rodgers v Leeds Laser Cutting Ltd
What happened in this case
Mr Rodgers’ business was finished in the wake of messaging his line director to say that he wouldn’t go to work during the primary lockdown since he was worried about tainting his small kids. He wouldn’t go to work in spite of:
working in a huge distribution center that was “the size of a large portion of a football pitch”, with regularly just five individuals working in this enormous work area; and
his manager conveying a staff correspondence affirming that it was setting up safe-working measures, including social separating and upgraded cleaning.
Mr Rodgers brought an unreasonable excusal guarantee.
What the tribunal said
In rejecting Mr Rodgers’ unfair dismissal claim, the employment tribunal drew a distinction between:
- an employee refusing to attend work because they have specific concerns about safety in their workplace that they have communicated to their employer; and
- what the tribunal characterised as “general concerns about serious and imminent danger all around” during the pandemic.
The tribunal accepted that the former could potentially lead to an unfair health and safety dismissal, but that the latter could not. In other words, the pandemic and fears around it did not give employees the automatic right to stay away from work when their employer required their physical attendance.
Lessons for employers from this case
2. Employees can voice genuine safe working concerns
Key case: Gibson v Lothian Leisure
What happened in this case
Mr Gibson, a cook, was placed on leave when the eatery in which he worked needed to close during the primary lockdown. In the approach the finish of that lockdown, the business requested that he accomplish a work to assist with resuming.
Mr Gibson voiced his interests about the absence of safe-working measures, specifically the absence of PPE. He was stressed that his dad, who was safeguarding, could get Covid from him.
The café consequently messaged to Mr Gibson in which it excused him with prompt impact.
Mr Gibson got a case the business court that his excusal was unreasonable for taking more time to safeguard himself and his dad.
What the council said
The work court was fulfilled that Mr Gibson was unreasonably excused.
As per the court, Mr Gibson had been a “effective and esteemed individual from staff” prior to raising his interests and he was excused on the grounds that, in conditions of peril that he sensibly accepted to be not kidding and inevitable, he took more time to safeguard himself and his dad.
In maintaining Mr Gibson’s case for uncalled for excusal, the work council requested his boss to pay him £23,625.
Lessons for employers from this case
3. Employers should take steps to protect vulnerable workers
Key case: Prosser v Community Gateway Association Ltd
What happened in this case
Ms Prosser was on a zero hours contract. In the blink of an eye before the main lockdown, she illuminated her boss that she was pregnant.
After the public authority created general wellbeing guidance, she was not given any movements. She in the long run got back to the work environment following five months, following a gamble evaluation.
Ms Prosser asserted in the business court that the deficiency of pay during her prohibition and the inability to permit her to get back to work were immediate pregnancy segregation.
What the tribunal said
The employment tribunal rejected Ms Prosser’s pregnancy discrimination claim, concluding that being sent home due to being classed as vulnerable was not unfavourable treatment.
The tribunal took into account that:
- the employer was following the government’s public health advice and regulations in place at the time; and
- she was appropriately consulted about the reasons for her exclusion.
The tribunal also noted that Ms Prosser was “paid generously beyond the requirements of her zero hours contract”, so she was compensated financially.
Lessons for employers from this case
4. Dismissal for failure to follow safety protocols can be fair
Key case: Kubilius v Kent Foods Ltd
What happened in this case
Mr Kubilius was a delivery driver. The majority of his work involved deliveries to and from Tate & Lyle, one of his employer’s major clients.
Tate & Lyle had a strict rule that everyone had to wear a mask when attending their sites. However, Mr Kubilius was banned from its site when he repeatedly refused to wear a mask while sitting inside his cab (although he did wear one while outside his cab).
After an investigation and disciplinary process, Mr Kubilius’ employer dismissed him for gross misconduct.
Mr Kubilius brought an employment tribunal claim for unfair dismissal.
What the tribunal said
The work council observed that Mr Kubilius’ excusal was fair.
The council said that, albeit another business could have given an admonition, the business’ choice to excuse fell inside the scope of sensible reactions.
In dismissing Mr Kubilius’ unreasonable excusal guarantee, the work council was impacted by:
- the importance that the employer placed on maintaining good relationships with its suppliers and customers;
- his insistence that he had done nothing wrong and the concern that he may behave in the same way again;
- the difficulty of him continuing in his role because Tate & Lyle had banned him; and
- his lack of remorse.
Lessons for employers from this case
5. Dismissal for online workplace safety rant can be fair
Key case: Lynch v Middlesbrough DP Ltd
What happened in this case
Mr Lynch, a pizza conveyance driver, was worried for his security toward the beginning of the pandemic. He messaged the organization’s HR inbox and said that he wouldn’t be coming to work until it was protected to do as such. He took up the choice of neglected self-seclusion.
In any case, Mr Lynch in this manner posted a message on Facebook that people who kept on working for Domino’s Pizza during lockdown were “a shame”. He likewise got into a web-based spat with an individual representative, whom he undermined with actual brutality.
In spite of a later expression of remorse, Mr Lynch was excused for conveying the intimidations, which were a break of the business’ online entertainment strategy.
Mr Lynch asserted unreasonable excusal on the premise that he was excused for having made safeguarded revelations.
What the court said
In excusing Mr Lynch’s unreasonable excusal guarantee, the court inferred that his activities added up to ridiculous offense defending outline excusal.
The council proceeded to presume that, regardless of whether Mr Lynch’s grumblings could be viewed as safeguarded exposures, there was no sign that Mr Lynch was excused as a result of them.
As indicated by the court, the principle justification behind Mr Lynch’s excusal was that he had conveyed a genuine intimidation against an associate, in break of the business’ virtual entertainment strategy.
Lessons for employers from this case
6. Redundancy: no obligation to furlough employee
Key case: Handley v Tatenhill Aviation Ltd
What happened in this case
Mr Handley was a flying educator. He was placed on leave when the avionics firm for which he worked needed to close from the get-go in the pandemic.
At the point when the flight firm started to battle monetarily, Mr Handley’s boss made him excess. The business took the view that there would be a drawn out decrease in the requirement for flight preparing and it was questionable the way in which long the vacation plan would endure.
Mr Handley fought in his out of line excusal that the business ought to have kept him on vacation as opposed to excusing him.
What the council said
The business court maintained Mr Handley’s unjustifiable excusal guarantee, in spite of the fact that he was granted no pay.
The council acknowledged that, while one more manager could have decided to leave Mr Handley on vacation, the choice to make him repetitive was inside the scope of sensible reactions.
As indicated by the council, it is for the business to choose how to structure its business and when to make redundancies.
Nonetheless, the court viewed the excusal as out of line on account of procedural imperfections in the business’ overt repetitiveness method. At last, Mr Handley’s remuneration was decreased to zero since he would have been excused regardless of whether a fair system had been followed.
Lessons for employers from this case
7. Redundancy: failure to consider furlough affects fairness
Key case: Mhindurwa v Lovingangels Care Ltd
What happened in this case
Mrs Mhindurwa worked for Lovingangels Care Ltd. She gave live-in care until the individual she was really focusing on went to reside in a consideration home.
The business let Mrs Mhindurwa know that there could have been no other live-in care work accessible and she was made repetitive. This was regardless of her solicitation to be furloughed, which was declined.
Mrs Mhindurwa brought an unreasonable excusal guarantee, refering to specifically the business’ inability to think of her as vacation demand truly.
What the court said
The work council maintained Mrs Mhindurwa’s case.
The court featured that the reason for the vacation conspire was to try not to lay off representatives in view of the pandemic and this was by and large the sort of circumstance that the leave plot conceived.
In the council’s view, a sensible boss would have thought of in the event that she could be furloughed to try not to be excused for overt repetitiveness.
Lessons for employers from this case
8. Variation: employee’s agreement required to reduce pay
Key case: Khatun v Winn Solicitors Ltd
What happened in this case
Toward the beginning of the pandemic, Winn Solicitors put half of its staff on vacation.
The business likewise expected representatives to sign a variety of agreement to permit it, with five days’ notification, to leave them or decrease their hours and pay by 20%.
Ms Khatun, a specialist, wouldn’t sign the variety of agreement, which prompted her excusal. She was given no choice to pursue.
Ms Khatun brought an unjustifiable excusal guarantee in the business court.
What the council said
The work council concurred that the justification for Ms Khatun’s excusal was “another significant explanation” and it had “sound, great business reasons” for requesting that representatives consent to the variety.
Nonetheless, the court observed that the business had gone about it in completely the incorrect manner. The court reprimanded:
- an almost complete lack of any meaningful consultation with staff;
- the assumption from the start that refusal to sign would automatically mean dismissal;
- the disregard for Ms Khatun’s existing terms and conditions; the failure to explore if there were any alternatives to dismissal, with furlough being one option; and
- the absence of the opportunity to appeal against dismissal.
Given these flaws, the employment tribunal had little hesitation in upholding Ms Khatun’s unfair dismissal claim.
Lessons for employers from this case
9. Remote working request refusal can result in tribunal case
Key case: An Operations Coordinator v A Facilities Management Service Provider
What happened in this case
In this Republic of Ireland case, the complainant was an operations coordinator working in a small office at a university. The complainant was concerned about catching and passing Covid-19 on to her asthmatic husband.
After coronavirus cases appeared in Ireland in March 2020, the three coordinators requested to work remotely, pointing out that they had been supplied with laptops and already occasionally worked from home.
The operations coordinators suggested that, if they could not all work remotely, it would be reasonable for them to rotate their presence in the office, with only one person attending the office at any one time. The employer rejected this suggestion.
The complainant resigned and claimed constructive dismissal.
What the tribunal said
The Workplace Relations Commission in Ireland upheld the claim.
The Commission criticised the employer for failing to take up the coordinators’ “eminently sensible” suggestion of rotating their presence in the office.
According to the Commission, it would have been advisable for the employer to have trialled this working arrangement.
The Commission noted that:
- the coordinators already had the equipment needed to work remotely;
- the three roles were interchangeable, meaning that they could cover for each other;
- much of their work was computer based; and
- while an on-site presence was needed, student numbers on the campus had dropped dramatically.
The Commission awarded €3,713 to the complainant. The award was relatively low because she had mitigated her loss by quickly finding another job.
Lessons for employers from this case
10. Difficult job market during pandemic pushes up awards
Key case: Thompson v Scancrown Ltd (t/a as Manors)
What happened in this case
Mrs Thompson, a project supervisor at a free London bequest specialists, made an adaptable working solicitation ahead of her return from maternity leave.
Mrs Thompson suggested that she return to chip away at a four-day working week and change her hours to end her day at 5pm as opposed to 6pm to gather her youngster from nursery.
Notwithstanding making ideas with regards to how the plan could be made to work by and by, Mrs Thompson’s adaptable it was gone down to work demand.
Mrs Thompson surrendered and brought a business council case, which incorporated a case for circuitous sex segregation.
What the tribunal said
The business council maintained Mrs Thompson’s case.
The council acknowledged that the business’ refusal to permit Mrs Thompson to move to a four-day working week and the necessity to work until 6pm every day put her in a difficult spot.
As indicated by the council, the refusal of the adaptable working solicitation was not a proportionate method for accomplishing the real point of keeping up with fruitful relations with clients.
The work council granted almost £185,000 to Mrs Thompson. Most of the honor was for loss of income, as the council recognized the trouble that she had in getting work at an equivalent compensation, given the effect of the pandemic hands on market in her area and the London real estate market.
