Hogan Lovells

A tale in two parts - COVID-19 and health and safety dismissals

Under s100 of the Employment Rights Act, an employee is entitled not to be dismissed because they have taken or proposed to take appropriate steps to protect themselves or someone else from circumstances of danger which they reasonably believed to be serious and imminent. There have been two recent employment tribunal decisions that explore how this protection operates where employees have raised concerns about health and safety in the context of COVID-19.

In the first, Accattatis v Fortuna Group (London) Ltd, Mr Accattatis was employed as a sales and project marketing co-ordinator by Fortuna Group, a supplier of PPE. There had been a history of friction between him and his employer, although Fortuna had no criticisms of his work performance. During mid to late March 2020 Fortuna introduced changes to its working practices because of the spread of COVID-19, such as an enhanced cleaning regime, providing hand sanitisers and asking employees to observe social distancing.

From the beginning of April Mr Accattatis self-isolated because he had experienced COVID symptoms. During this period he told his employer that he was concerned about working in the office or travelling to work by bus and asked either to be allowed to work from home or placed on furlough when his sick leave ended. Fortuna did not accept that he could do his job from home and was not prepared to put him on furlough when it was actively trading and took the view that he was a key worker in light of the demand for PPE at that time. It was prepared to allow him to take holiday or unpaid leave if he did not want to attend the workplace. Mr Accattatis continued to demand home-working or furlough and Fortuna dismissed him shortly before he acquired two years’ service. He brought a claim for automatic unfair dismissal under s100.

The employment tribunal dismissed his claim. Although it accepted that there were circumstances of danger that the employee believed to be serious and imminent, the steps he took were not reasonable. Fortuna had allowed him to remain at home if he took holiday or unpaid leave but had reasonably and justifiably concluded that he could not work from home and did not qualify for the furlough scheme. His demands to work from home or be placed on furlough because it was not attractive for him to take unpaid leave were not appropriate steps to protect him from danger. As such s100 was not engaged and his claim failed.

The second case, Gibson v Lothian Leisure, was decided in the employee’s favour. He was employed as a chef at a pub and was furloughed in March 2020 when the venue closed during the first national lockdown. When he was asked to return to work to prepare for the re-opening of the business, he raised concerns about the absence of PPE or any other measures to ensure a safe workplace in light of COVID. He was particularly worried about the risk of transmitting COVID to his father, with whom he lived and who suffered from significant underlying health conditions that required him to shield. The tribunal described the employer’s response to those concerns as “robustly negative” and Mr Gibson was dismissed by text message on 30 May, ostensibly as a result of changed working practices, without notice or holiday pay.

As the employer chose not to appear or be represented at the hearing, the tribunal accepted Mr Gibson’s evidence and found that he was automatically unfairly dismissed. He reasonably believed that there was a serious and imminent danger to his father and raising the issue of PPE and social distancing measures with his employer was a reasonable response to that. Given that until that point he had been a successful and valued member of staff and nothing else had occurred to alter that position, the tribunal concluded that he was dismissed or selected for redundancy for taking reasonable steps to protect his father from danger.

Belief that biological sex immutable protected under Equality Act

A belief is a philosophical belief for the purposes of the Equality Act if it meets the five conditions established in the case Grainger plc v Nicholson. It must:

  • Be genuinely held;
  • Be a belief not an opinion or viewpoint;
  • Relate to a weighty and substantial aspect of human life and behaviour;
  • Attain a certain level of cogency, seriousness, cohesion and importance; and
  • Be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.
In Forstater v CGD Europe the EAT found that the claimant’s belief that biological sex is immutable and cannot be changed was a philosophical belief. The employment tribunal was wrong to find that it was not worthy of respect in a democratic society.

Ms Forstater was engaged as a consultant by CGD Europe, a think-tank specialising in international development. She believed that someone’s biological sex is determined at birth and cannot be changed and tweeted to this effect in the context of proposed amendments to the Gender Recognition Act. After CGD staff complained that her tweets were transphobic and offensive, CGD decided not to offer her further work. Ms Forstater claimed that she had been directly discriminated against because of a philosophical belief.

Overturning the employment tribunal decision, the EAT found that the concept of a belief had to be read in light of the emphasis the European Convention on Human Rights places on freedom of expression as an essential foundation of democratic society. For a belief not to be worthy of respect in a democratic society it must involve a very grave violation of the rights of others which is tantamount to a destruction of those rights. The types of belief that would not be protected would include pursuing totalitarianism, advocating Nazism or espousing violence and hatred in the gravest of forms. However, a belief will not be excluded from protection simply because it is offensive, shocking or disturbing to others.

The tribunal’s role was to decide whether Ms Forstater’s belief qualified for protection against that backdrop, not to become engaged with the merits or validity of the belief in question. A belief in the biological immutability of sex did not involve a destruction of the rights of others, it was widely shared, including by respected academics, and it was consistent with the law of the land. As such it was a philosophical belief under the Equality Act.

However, the EAT pointed out that it does not follow that those holding gender-critical beliefs can ‘misgender’ trans people with impunity. (In this context the tribunal accepted Ms Forstater’s evidence that she would usually seek to respect a person’s choice of pronoun and their self-identification of gender identity in a social or professional context.) Depending on the circumstances, misgendering could amount to harassment for which the perpetrator could be liable, even if it constituted the manifestation of a philosophical belief, and for which an employer could be vicariously liable.

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