Covid-19

Coronavirus: Employer’s resource centre — live guidance available here

COVID-19: Employee unfairly dismissed for raising concerns about lack of COVID-secure workplace measures

ZK
BY Zoe Kerr
Employment Law & HR

An employee was held to have been unfairly dismissed for raising issues about the lack of COVID-secure measures in his workplace and the effect this could have on his clinically vulnerable father. In Gibson v Lothian Leisure, the tribunal found that Mr Gibson’s automatic unfair dismissal was in breach of section 100(1)(e) of the Employment Rights Act 1996 (ERA), as he had taken steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger.

Background

Since February 2019, Mr Gibson had been working as a Chef in a restaurant owned by Lothian Leisure and was considered a successful and valued member of staff. However, like many employees at that time, due to lockdown and the Covid-19 Pandemic, he was put on furlough in March 2020. In the run-up to the end of lockdown and the prospective opening of the restaurant, whilst still on furlough, Mr Gibson was asked to undertake work for his employer. He was concerned about catching Covid-19 at work and passing it on to his father, who had several chronic medical conditions and was required to shield during lockdown given his clinical vulnerability. However, when Mr Gibson expressed concerns to his employer about the lack of PPE and Covid-secure working precautions in place, he was told to “shut up and get on with it”.

With no prior discussion or warning, Lothian Leisure summarily dismissed Mr Gibson by text message on 30 May 2020, informing him that this was due to a change in the business format and that the restaurant would be operating with reduced numbers post lockdown. He did not receive any notice or accrued holiday pay. Mr Gibson subsequently brought various tribunal claims against his former employer, among them one for automatic unfair dismissal.

 

Decision

Mr Gibson was successful in his claim by satisfying the conditions of section 100(1)(e) ERA. Given the growing prevalence of the Covid-19 virus at that time and the potential life-threatening harm it could cause his father if he contracted it, the tribunal held it was reasonable for Mr Gibson to believe that the lack of health and safety measures were of serious and imminent danger, leading him to raise concerns about the lack of PPE in his workplace. He was also awarded payment in lieu of notice, untaken holidays, underpaid furlough pay and deducted pension contributions, totalling just over £21,000.

Mr Gibson had under 2 years of service at the time of his dismissal. Is it important to be aware that there is no qualifying period of employment to bring a claim of automatically unfair dismissal where the dismissal is linked to the employee’s concern about health and safety at work. Furthermore, awards in successful claims are uncapped. Each case of this nature will turn on its own facts and will be influenced by factors such as the provision of PPE and the employer’s risk assessment. Businesses facing situations like this are strongly encouraged to seek legal advice to avoid exposure to claims of this nature.

© Copyright of Law At Work 2021 Law At Work is part of Marlowe plc’s employee relations division