In recent weeks, we have started to see some interesting decisions from tribunals on claims relating to COVID-19 and lockdown. We consider below two cases that have an impact on employment law and points to note for educational establishments.
Can an employee who leaves the workplace over concerns about infecting others be dismissed fairly?
In Rodgers v Leeds Laser Cutting Ltd, the Claimant sent a text message to his manager on 29 March 2020 stating that he would be staying away from the workplace until lockdown had eased because he was concerned that if he caught COVID-19, he would infect his vulnerable children, one of whom has sickle cell anaemia, the other being seven months old. The Claimant worked in a warehouse “the size of half a football pitch” with typically five other people. Shortly before the first national lockdown on 23 March 2020, one of the Claimant’s colleagues displayed symptoms of COVID-19 and was sent home to isolate. The business stayed open and measures were put in place for social distancing, wiping down surfaces and staggering break times.
On 24 April 2020, the Claimant was dismissed without warning and, lacking sufficient service to bring a claim for ordinary unfair dismissal, he brought a claim under sections 100(1)(d) and (e) of the Employment Rights Act 1996 (“ERA”). This protects employees from dismissal where they have exercised their right to leave the workplace in circumstances where they 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. This is a “day one” right so employees do not need two years’ service to bring this claim.
The tribunal considered whether COVID-19 constituted a “serious and imminent danger” and focused on the knowledge about COVID-19 available when the Claimant decided to remain at home in March-April 2020. At that time, the government advised people to keep their distance and to regularly wash their hands. It was possible for the Claimant to do both. The tribunal found that the Claimant had breached self-isolation guidance, had not provided any evidence of any workplace danger and had not taken any steps to avert danger. The claim failed; the tribunal held that accepting the Claimant’s submissions could lead to any employee being able to rely on sections 100(1)(d) and (e) ERA to leave the workplace simply as a result of the pandemic.
Whilst not binding on other tribunals, this decision is good news for employers but the facts are quite specific. Educational establishments should not assume that similar cases will fail – particularly where employees have refused to come into work during spikes in infection rates or have underlying health conditions. The Claimant hadn’t worked long enough to bring an ordinary unfair dismissal claim which would have succeeded on procedural grounds given that he was dismissed without warning or any opportunity to appeal.
This case reinforces that implementing the latest government guidance and COVID-19 secure measures in the workplace are vital. Educational establishments that we have assisted are generally very ‘hot’ on this, not least because of insurance requirements and have relentlessly tried to follow the constantly changing guidance. They are likely to be able to reduce the risk associated with claims under sections 100(1)(d) and (e) ERA because, with the measures in place, employees will find it much harder to establish that the workplace is dangerous.
On a separate note, the Department for Education has recently said that the Health and Safety Executive will check that further education providers in England and Wales are following the relevant Government guidelines on being COVID-secure.
Can an employee be dismissed for refusing to wear a face mask?
A second case that should be on all educational establishment’s radar is Kubilius v Kent Foods Ltd where the Claimant, a delivery driver, was fairly dismissed for refusing to wear a face covering.
Much of the Claimant’s work involved travel to and from one of Kent Foods’ major clients, Tate and Lyle (‘Tate’). At the time of the incident in May 2020, government guidance was that wearing a face mask was optional, however, Tate had their own mandatory requirement that face masks were to be worn by all those who attended their site and provided visitors with masks on arrival for that purpose. During a delivery to Tate, and despite repeated requests, the Claimant refused to wear a mask whilst he was inside the cab of his lorry. Tate banned the Claimant from attending its site.
The Claimant insisted that he had done nothing wrong and was summarily dismissed following an investigation and disciplinary process by his employer.
The tribunal held that the dismissal was fair finding that the employer had a genuine belief in misconduct and that it had carried out a reasonable investigation. The Claimant’s actions were a sufficient reason for dismissal. In the tribunal’s view, dismissal did fall within the range of reasonable responses.
This decision confirms that refusing to wear a face mask can, in certain circumstances, constitute a potentially fair reason for dismissal. Before taking any action against an employee, employers should first investigate why an employee is refusing to wear a mask. Dismissing an employee who is medically exempt, for example, could potentially amount to claims for unfair dismissal and disability discrimination that could succeed.
The tribunal will look at the government’s guidance at the time and apply the usual principles of unfair dismissal when dealing with claims relating to COVID-19. Whilst investigations into potential misconduct may be significantly more difficult during a pandemic, it is still key to get these rights in order to successfully defend any claims.
Following the further relaxation of coronavirus restrictions on 17 May 2021, the Department for Education has recently revised its detailed guidance to schools. The detailed guidance can be found here. This means that staff will no longer be required to wear face coverings when moving around classrooms but they will need to do so when travelling on school transport and/or in indoor communal areas where 2m social distancing from other adults is not possible. Practically, many educational establishments are still allowing staff to continue wearing face coverings in school as a matter of choice. If you need any help updating your Covid-19 Code of Conduct, Health and Safety Advice and Risk Assessment in light of this or need assistance on the health and safety or employment side of things generally, please let us know.