The pandemic has forced employers to navigate endless legal and practical challenges, exposing themselves to a variety of potential Covid-19-related claims from employees and workers. As the UK Government looks towards transitioning from pandemic to endemic, we reflect on some of the key Covid-19 decisions handed down by the employment tribunal over 2021 and consider what might be in the pipeline for the year to come.
What are the key cases from 2021?
Employment tribunals are busy working through a significant backlog of cases, but some trends are already starting to emerge in the Covid-19 space. The majority of decisions handed down so far have involved sections 44 and 100 of the Employment Rights Act 1996 (the ERA). These provisions give individuals the right not to suffer a detriment or be dismissed for leaving work, refusing to work, or taking appropriate steps to protect themselves or other people where they reasonably believe that they are in serious and imminent danger. These sections were little used before the pandemic, but that seems to be changing.
The decision in Rodgers v Leeds Laser Cutting Ltd set the tone. Mr Rodgers refused to return to the workplace after a colleague showed Covid-19 symptoms. He was dismissed after a month of refusing to attend the workplace and brought a claim for automatic unfair dismissal. The employment tribunal dismissed his claim, noting that general concerns about ‘serious and imminent danger all around’ did not give employees the automatic right to stay away from work where their employer required their physical attendance. Crucially, the tribunal found that Mr Rodgers’ employer had implemented adequate health and safety measures in the workplace and noted that Mr Rodgers flouted the self-isolation rules outside of work.
Contrast this to Gibson v Lothian Leisure, where the tribunal held that Mr Gibson had been automatically unfairly dismissed for refusing to return to work as a chef in a restaurant after he raised concerns about workplace safety and the risk of infecting his clinically vulnerable father. Here, Mr Gibson’s employer provided no PPE to staff and had no workplace health and safety precautions in place.
In the same vein, the tribunal found that the employee in the more recent case of Preen v Coolink and Mullins had been automatically unfairly dismissed for bringing to his employer’s attention circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety. However, Mr Preen’s claim that he had also been automatically unfairly dismissed because he left or refused to return to his workplace where he reasonably believed there to be ‘serious and imminent danger’ failed. Here, Mr Preen’s employer had put in place sensible workplace precautions and Mr Preen was willing to do urgent and/or essential work. This case demonstrates the difficulty for employees in proving that their workplaces pose a ‘serious and imminent danger’ in circumstances where their employers are taking the necessary health and safety steps.
Of course, sections 44 and 100 ERA are not the only provisions protecting workers in this type of scenario. The employment tribunal’s recent decision in Best v Embark on Raw Ltd demonstrates that employees are also able to rely on the whistleblowing legislation to raise concerns about their employers’ response to Covid-19. In Best, the employment tribunal held that Ms Best had been dismissed because she had made qualifying protected disclosures about the unsafe working practices in her workplace.
The X v Y case moves away from claims brought under provisions of the ERA and onto claims brought under the Equality Act 2010 (the EA), the UK’s main discrimination legislation. Here, the claimant argued that her refusal to return to work was due to reasonable and justifiable concerns about the workplace surrounding Covid-19 and brought discrimination proceedings (on the grounds of her philosophical beliefs) after she chose not to return to work and her employer stopped paying her. However, the tribunal held that the fear of Covid-19 is not protected under the EA as a ‘philosophical belief’; the claimant’s concerns were more akin to a viewpoint or opinion and the threat was time specific, so was too narrow to constitute a belief as to a weighty and substantial aspect of human life and behaviour.
The final case in our round-up is Allette v Scarsdale Grange Nursing Home Ltd, in which the tribunal held that the dismissal of a care home nurse for refusing her Covid-19 jab was fair and did not engage human rights rules. Due to an outbreak of Covid-19, the employer made vaccination a condition of continued employment in January 2021 (before the UK Government legislated to mandate Covid-19 vaccinations in care homes). The nurse refused and was dismissed following an internal disciplinary process. The tribunal considered that the mandatory vaccination policy was a proportionate interference with the nurse’s right to respect for private life and that the employer had a legitimate and pressing need to reduce Covid-19 exposure to its vulnerable patients. The tribunal also noted that the nurse’s genuine fear about the vaccine was unreasonable as her fear was not supported by medical authority. It was therefore reasonable for the employer to dismiss her for misconduct.
What do these decisions mean for employers?
As always, each case turns on its own facts, but the above decisions demonstrate that employers can generally try to reduce the risk of successful claims under the ERA by implementing appropriate and proportionate Covid-19 health and safety measures in the workplace and by consulting regularly with staff. While the majority of tribunal decisions in our round-up are encouraging for employers, it is too early to draw conclusions and it should be borne in mind that individuals with different fact patterns might be more persuasive. Importantly, these cases might encourage individuals to seek protection via whistleblowing or discrimination legislation, for which there is no financial cap on compensation.
What should you expect in the year to come?
In 2022, we expect more Covid-19 related claims as the employment tribunal works through its significant backlog. In addition to the issues raised already, we may see employment claims relating to ‘no jab no job’ policies outside the care home and healthcare sectors, claims that office attendance is a way to ‘get ahead’ in a hybrid world (thus leading to potential discrimination), and a variety of different claims resulting from the reduction of contractual sick pay for unvaccinated staff members. There may also be further attempts to bring claims under the EA where, for example, employees assert that being ‘anti-vax’ or having ‘long Covid’ is a protected characteristic. Given the wide-ranging impact of the pandemic, it is also likely that Covid-19 issues will be raised in the civil courts. In particular, we may see negligence claims against employers who have not taken adequate health and safety measures to satisfy the duty of care owed to their employees.
In the more immediate future, employers should ensure that their return to the workplace takes account of the latest UK Government guidance on working safely during Covid-19, as well as any other legal obligations placed on them.
