Employment Law Update – May 2021
Friday 28th May 2021
Threat of COVID-19 is not always a valid reason to leave the workplace…
An employee deciding not to return to work after isolating from Covid-19 was not protected from being dismissed for exercising his right to leave his workplace for health and safety reasons, as the Employment Tribunal decided in Rodgers v Leeds Laser Cutting Ltd.
Mr Rodgers worked for Leeds Laser Cutting Ltd in a large warehouse with only 5 other people. Throughout lockdown in 2020, the business remained open but introduced measures to keep staff safe. This included social distancing, disinfecting surfaces, staggering working hours to avoid groups congregating and providing masks. Mr Rodgers isolated in late March 2020 due to having Covid-19 symptoms. In early April he messaged his manager to tell him he would not be returning to work until Covid restrictions had eased as he was concerned that contracting Covid could harm his two vulnerable children. On 24 April 2020, Mr Rodgers was informed his employment had been terminated. Mr Rodgers brought a claim against his employer on the basis that he was protected from dismissal as he was exercising his right to leave his workplace where he believed there was serious and imminent danger.
The Employment Tribunal highlighted that employees are only protected from detriment or dismissal when exercising the right to leave the workplace if they have ‘reasonable belief’ that the workplace poses a serious risk to them or their family. Whilst Mr Rodgers’ concerns about his children were significant, he had not raised any concerns about his working conditions in his communications with his employer. Furthermore he acknowledged that he had been able to follow all government advice for safe working in his workplace. He did not provide any evidence to the Tribunal to show any particular danger his workplace posed and so it was found that he did not have ‘reasonable belief’ of the threat.
The facts of this decision are quite specific and employers should note that this decision is not binding. Companies must bear in mind that Covid-19, or any other health risk, will affect every employee differently. Where employees refuse to come into work because they do have reasonable belief that their workplace poses a serious and imminent health risk to themselves or their family, they will be protected. Where the employer dismisses the employee or subjects them to detriment and, unlike in this case, has not taken appropriate steps to protect staff, the employee’s case is likely to succeed.
The best way for employers to protect themselves from claims of detriment relating to Covid-19 safety concerns is to ensure they adhere to the government’s guidance on safe ways of working, and enter into discussions with employees to help alleviate any concerns they may have.
Employee who caused ‘friction’ in the workforce protected from dismissal due to health and safety task
In Sinclair v Trackwork Ltd the Employment Appeal Tribunal overturned a decision by the Employment Tribunal to find that employees can rarely be dismissed for the way they implement health and safety measures.
Trackwork Ltd had asked Sinclair to implement a new safety procedure but not informed his co-workers of his task. Sinclair’s changes upset some colleagues and others raised concerns about what he was doing. Sinclair was ultimately dismissed for causing friction within the workforce.
Sinclair brought a claim for automatic unfair dismissal as he had been dismissed for carrying out a health and safety activity under the instruction of his employer. In the first instance, the Employment Tribunal dismissed his claim on the basis that it was the souring of relations within the workforce which was the principal reason for his dismissal, rather than the health and safety activity itself.
The Employment Appeal Tribunal allowed Sinclair’s appeal and found he had been automatically unfairly dismissed. The ‘friction’ caused had been a direct result of the health and safety work Sinclair had been asked to carry out, not the way in which he had done it. Employers should not be able to order an employee to implement an unpopular safety measure, then dismiss them when the measure is disliked by others.
Given that many employers are opening their doors again, there will be lots of new health and safety measures for staff to implement and abide by. Employers cannot rely on the unpopularity of their own safety measures to dismiss an employee charged with implementing them.
Prevention is better than a cure for fundamental breach of employment contracts…
Once an employer is in fundamental breach of an employment contract, they cannot undo the breach with later actions, the Employment Appeal Tribunal held in Flatman v Essex County Council.
Ms Flatman was a Learning Support Assistant in the Respondent’s school. Her role was to provide support to a disabled pupil and involved weight-bearing on a daily basis. After repeated requests for manual handling training over a period of 9 months, no training was received and the Claimant was signed off by her doctor with back pain. Upon her return to work she was promised that she would no longer be required to lift the pupil and that training would be organised in the following weeks. No training was provided so the Claimant resigned and made a claim for constructive unfair dismissal on the basis that the Respondent had fundamentally breached the implied duty to take reasonable care for her health and safety.
The Employment Tribunal dismissed Flatman’s claim as it found that, after breaching the Manual Handling Operations Regulations 1992, the Respondent had taken steps to ensure she was no longer exposed to danger, fulfilling its duty to take care of her health and safety. However, the Employment Appeal Tribunal upheld Flatman’s appeal, stating there is a difference between the employer taking steps to prevent a fundamental breach and the employer taking steps to try to undo a fundamental breach. A previous case, Buckland, was clear that once the employer is in fundamental breach, any later actions cannot undo this. The Employment Appeal Tribunal found that the contract had been breached prior to the steps taken by the employer upon her return to work. Flatman’s claim for constructive dismissal was therefore successful.
Employers should keep in mind that once they have fundamentally breached an employee’s contract, only the employee can ‘undo’ the breach. Only by remaining in their role may the employee affirm the contract and lose the right to bring a claim. This emphasises the importance of employers ensuring they are proactive in avoiding breaches of employees’ contracts (including any terms implied by statute).