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:
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.
Fond farewell...penultimate edition of newsletter
Hogan Lovells is changing how we deliver our Employment content, which means that this is the penultimate edition of our newsletter. On 12 July we will be moving to our new technology platform, Hogan Lovells Engage.