Employee unfairly dismissed after raising Covid-19 related health and safety concerns

The Employment Tribunal in Scotland has ruled that an employee was unfairly dismissed for raising Covid-19-related health and safety concerns.

The case, Gibson v Lothian Leisure, is one of a number that Employment Tribunals have dealt with related to the pandemic and, specifically, a previously little-known protection afforded to employees under the Employment Rights Act 1996.

Let’s take a look at the case and consider how it might affect schools.

The background to the case

The employee (Mr Gibson) was employed by the employer (Lothian Leisure) as a chef at one of the employer’s restaurants. The restaurant closed in March 2020 due to the national Covid-19 lockdown and Mr Gibson was furloughed.

In April 2020 the employer asked Mr Gibson to come back to work to ‘help out’ on an ad hoc basis, in the expectation that the workplace would be reopening to customers in the near future. Mr Gibson raised concerns about the lack of PPE and other Covid-secure measures. His concern related specifically to his father, who was clinically vulnerable. The employer’s response was robust. Mr Gibson was told to “shut up and get on with it”.

At the end of May 2020, without any prior discussion or process, the employer terminated Mr Gibson’s employment with immediate effect by text message. The employer suggested this was due to an internal restructure in the restaurant following lockdown.

Mr Gibson brought a claim to the Employment Tribunal for automatically unfair dismissal, among other related claims.

Mr Gibson did not have two years’ continuous service at the point of termination, which would normally mean he would not benefit from unfair dismissal protection.

However, his claim was that he had been automatically unfairly dismissed under section 100(1)(e) of the Employment Rights Act 1996. This says that an employee (irrespective of length of service) is automatically unfairly dismissed if the reason (or the principle reason) for the dismissal was because the employee was taking (or proposed to take) appropriate steps to protect himself or other persons from serious and imminent danger.

What did the Employment Tribunal say?

The Employment Tribunal noted the circumstance of danger in this instance was the growing prevalence of infections caused by the Covid-19 virus. The potential significant harm that could be done to Mr Gibson’s father would be to contract the virus from Mr Gibson. Mr Gibson reasonably believed this danger to be serious and imminent, which resulted in him raising the health and safety concerns with the employer. Raising this issue amounted to an appropriate step to protect his father from the danger.

The Employment Tribunal found that Mr Gibson was unfairly dismissed by the employer because he was dismissed for the steps he took to protect his father or he was selected for redundancy for this reason.

The impact of the Employment Tribunal’s decision on schools

Although the case does not set a binding precedent, it does reflect a trend for such claims arising in the context of Covid-19. Schools should be aware that an employee may benefit from protection in the event they refuse to attend work due to concerns arising from the pandemic.

Having said that, cases of this nature are fact-sensitive and the protection will not always arise in the context of the pandemic. It is worth noting that the circumstances in the case arose at a time when Covid-19 infections, hospitalisations and fatalities were of a high number and little was known about the virus. Over the last 16 months things have changed and knowledge about the virus has increased. The vaccination programme has been rolled out and appears to be successful in providing the majority of people with high levels of protection against catching Covid-19 and becoming seriously ill or needing to be hospitalised. Due to this, it may now be more difficult for employees to establish a reasonable belief that Covid-19-related circumstances of danger which are serious and imminent exist within their workplace.

However, consideration should always be given to an employee’s individual circumstances especially where they, or a member of their family, household, or a person they care for, are considered clinically extremely vulnerable. Schools should ensure that they communicate effectively with any employee who raises health and safety concerns regarding the working environment and seek legal advice given the complications in this area.