Covid-19: unfair dismissal decisions at employment tribunal

It has been over a year since the first national lockdown in England and the effects of the Covid-19 pandemic on the employer and employee relationship are now being heard by the Employment Tribunal (ET). In two recent cases, the ET considered claims of an unfair dismissal and an automatic unfair dismissal, where employees acted in response to protective measures put in place by their employers to reduce the risk of Covid-19 infection.

 

Kubilius v Kent Foods

The ET held, in this unfair dismissal case, that the dismissal of an employee who refused to wear the relevant personal protective equipment (PPE), as required when carrying out their employment, was a fair dismissal and was within the ‘reasonable range of responses’ expected from an employer in these circumstances.

Mr Kubilius was an employee of TC Facilities Management Limited, a distribution company, and was employed as an articulated lorry driver at their Basildon site. One of their biggest customers was the sugar company Tate and Lyle (T&L), which amounted to approximately 90% of their distribution work.

The employer’s health and safety policy stated that employees must co-operate with them to ensure a healthy and safe working environment. Their drivers’ handbook also required drivers to comply with the PPE instructions applied at its customers’ own sites. Their Employee Handbook also noted a good relationship with clients and suppliers was essential to their business.

T&L took the decision that face masks should always be worn at its Thames Refinery site by all to reduce the risk of coronavirus infection. All visitors to the site were issued with facemasks at the gatehouse.

On 21 May 2020 Mr Kubilius visited T&L’s Thames Refinery site in the course of his employment. On arrival, Mr Kubilius received the site rules and a face mask. During his visit, he refused to wear the face mask whilst he was in the cab of his lorry, as he felt this was his own isolated space, but he did wear it outside of the cab.

T&L managers explained to Mr Kubilius that due to his elevated position in the cab, it was possible for water droplets from his mouth to fall on to people outside as he spoke to them, and if he did not comply, then he will be banned from their site. Mr Kubilius continued to refuse to wear the face mask whilst he was in the cab and highlighted that it was not a legal requirement for him to do so and that their site rules did not reflect the requirement to wear a mask. Subsequently, T&L banned him from the site.

His employer suspended Mr Kubilius, investigated the incident and took the view that a disciplinary hearing was warranted, as he had committed a breach of the requirements of the Employee Handbook to maintain good relationships with the employer’s customers and suppliers and to cooperate with the employer to ensure a safe working environment.

Following the disciplinary hearing Mr Kubilius was dismissed. The employer’s view was that the ban at the T&L site materially affected his ability to do the job for which he was employed. The deliberate refusal to comply with a health and safety instruction was deemed to be a serious breach of their policy, which was aggravated by Mr Kubilius’ lack of remorse in the disciplinary hearing.

In reaching the decision to dismiss the employer did have further discussions with T&L to see if the ban could be rescinded, however T&L upheld the ban. The employer also explored the possibility of re-deploying Mr Kubilius so he would no longer be subject to carry out work with T&L’s Thames Refinery site; however, there were no other positions available.

 

The ET

As the dismissal was due to Mr Kubilius’ conduct, the ET confirmed this was a potentially fair reason to dismiss. It recognised his employer had a genuine belief Mr Kubilius was guilty of the misconduct and had reasonable grounds to conclude he committed the misconduct. The ET noted the investigation was reasonable in the circumstances and the disciplinary procedure they had followed was fair.

Taking into account the relevant circumstances, including Mr Kubilius’ lack of remorse during the disciplinary process and the practical difficulties caused by the T&L site ban to his employment, the ET concluded that the employer acted reasonably in all the circumstances and the decision to dismiss fell within the range of reasonable responses.

Mr Kubilius’ claim for unfair dismissal was dismissed.

 

Rodgers v Leeds Laser Cutting

The ET dismissed the claim of an employee who brought a complaint of automatically unfair dismissal against his employer, following the employee’s dismissal after he notified his employer that he would not return to work until the national lockdown had lifted.

As the employee did not have two years’ continuous service at the point of termination and had not acquired the statutory right not to be unfairly dismissed under the relevant legislation, the employee relied on legislation in relation to an ‘automatically unfair dismissal’. To be successful in this type of claim, there are several criteria that must be fulfilled, including (in this case) that the reason, or principal reason for the dismissal must be due to circumstances of danger which the employee reasonably believed to be serious and imminent.

Mr Rodgers was an employee of Leeds Laser Cutting Limited, whose workplace was a large warehouse-type space. Following announcement of the first national lockdown on 23 March 2020, the company published an employee communication to confirm the business would remain open and measures were being put in place to protect against Covid-19 and to enable the employees to work as normally as possible.

There were already some measures in place to protect against Covid-19 prior to the lockdown, following recommendations from a risk assessment carried out by an external professional in mid-March 2020. These recommendations included handwashing, wiping down services, social distancing and staggering start/finish/lunch times for employees. The company had continued conversations with employees in relation to the safety measures to protect against Covid-19.

On 16 March 2020, Mr Rodgers’ colleague displayed symptoms of Covid-19 and was sent home from the company’s premises and told to self-isolate. Mr Rodgers claimed to have worked with this colleague on this day. Mr Rodger later developed a persistent cough and feared he may have been exposed to infection and decided to self-isolate. Mr Rodgers obtained a self-isolation note from NHS 111 for the period of 28 March 2020 until 3 April 2020.

On 29 March there was text correspondence between Mr Rodgers and his line manager, Mr Thackery. During this correspondence, Mr Rodgers explained he had no alternative but to stay off work until the national lockdown had eased. This was due to concerns over his child (who had sickle cell disease) contracting Covid-19. He also had concerns for his seven-month-old baby as he did not know whether the baby had any underlying health issues, which would affect the baby’s health if they contracted Covid-19.

There was no further contact between Mr Rodgers and his employer; neither made any effort to contact the other to clarify Mr Rodger’s position or to raise the issue of alternative measures being put in place, such as furlough or sick pay. This continued until 24 April 2020, when Mr Rodgers sent a text message to Mr Thackery to say he had been told he had been sacked due to him self-isolating, and he requested that this should be confirmed in writing and that they provide him with his P45.

 

The ET

The ET found that Mr Rodgers did not raise concerns with his employer that could reasonably be described as meaningful concerns or complaints, which would inform them that he had thought there were circumstances of imminent danger within the workplace. Mr Rodgers failed to mention any concerns with his employer during the text correspondence on 29 March 2020 to show he had made his decision not to return to work due to the conditions in the workplace.

The ET concluded that Mr Rodgers’ decision to stay off work was not directly related to his working conditions. His concerns about the virus were general ones which were not directly linked to his place of work. The ET further concluded that, in any case, any belief Mr Rodgers held that there were circumstances of serious and imminent dangers in the workplace were not objectively reasonable. The ET highlighted the employer’s large workspace, where the relatively small number of employees who would be working in that area at any one time allowed adequate social distancing, and that the company had implemented measures to reduce the risk of Covid-19 transmission in the workplace.

Mr Rodgers’ claim was dismissed.

 

How does this affect schools?

Whilst these cases are only first instance decisions (and are not therefore binding on other tribunals) they are helpful to schools in demonstrating the kind of approach that tribunals are taking towards claims for unfair dismissal arising from employees’ conduct. Whilst generally, staff in schools are aware of the requirements to wear masks, and are compliant, there are some employees that are reluctant, for whatever reason, and we anticipate that this may become more prevalent as cases decrease and as staff receive their vaccinations.

The decision in Rodgers v Leeds Laser Cutting will no doubt reassure schools that they took the right steps by requiring staff to attend during the winter lockdown, when we saw an increase in staff referencing the risk of immediate danger as a reason for non-attendance, or working from home.

Schools should continue to ensure their policies are clear, up to date and that they are readily available for their employees to access. Where employees are required to carried out external visits, schools should ensure their employees are aware of any external policies or procedures which they are expected to follow, for example, making clear that staff are required to follow the rules and regulations in place at any other establishment.

Schools have a legal duty of care to keep their staff and pupils safe in school and are required to carry out a risk assessment to assess and manage the risks of Covid-19 in accordance with government guidance. They should offer reassurance to their employees that they are following this legal obligation and that they are complying with government guidance where appropriate at all times.

School employees should be regularly reminded of their responsibilities to follow the policies, procedures and guidance in place to manage the risks of Covid-19 in school.

Where employees are showing concern over carrying out their employment due to the risks of Covid-19, and where attempts at offering reassurance hasn’t alleviated those concerns, schools may consider exploring alternative arrangements with the employee for example, using annual leave or taking unpaid leave, homeworking (where suitable) or making use of the furlough scheme whilst available (subject to eligibility requirements). It is important for schools to obtain prompt legal advice in any of these circumstances.