Employee’s dismissal automatically unfair for raising concerns about lack of COVID-secure measures.

COVID-related cases continue to emerge from the employment tribunal. Many cases are showing that claimants are relying on the provisions of section 100 of the Employment Rights Act 1996, which give automatic unfair dismissal protection for employees who raise health and safety concerns. Historically, this area of unfair dismissal law was rarely raised in the tribunal, but the consequences of the pandemic has resulted in this provision being used far more than before.

In Gibson v Lothian Leisure, the claimant was a chef in a restaurant owned by the respondent. The restaurant was closed for a period of time as a result of the first lockdown in March 2020. The claimant was put on furlough.

Before the respondent reopened the restaurant, the claimant was asked to attend work. The claimant’s father was classed as ‘clinically vulnerable’ at the time, due to several medical conditions. As such, the claimant told the respondent that he was concerned about catching COVID at work and passing it onto his father. The claimant said that the respondent provided no personal protective equipment for staff and that they had no intention of requiring staff to take precautions and create a Covid secure working environment. According to the claimant’s evidence, when he raised these concerns, the respondent’s response to him was to “shut up and get on with it”.

Out of the blue, the respondent dismissed the claimant by text at the end of May 2020. Part of the text said:

“Moving forward I’ve decided to terminate your employment with ourselves. We are changing the format and running of the business on a day-to-day basis, and at the end of the lockdown process we will be running the business with a smaller team. Thanks for all your efforts in the past and I wish you well for the future.”

The respondent did not pay the claimant any notice pay or accrued holiday pay.

The tribunal decided that the claimant was dismissed because, in circumstances of danger which he reasonably believed to be serious and imminent he took steps to protect his father. In the circumstances the tribunal concluded that the claimant was automatically unfairly dismissed under section 100(1)(e) of the Employment Rights Act 1996. The tribunal also concluded that, in the alternative, the claimant had been unfairly dismissed, because the respondent’s text message suggested a possible redundancy situation, and as such the claimant had been unfairly selected for redundancy because he had taken steps to protect his father.

The tribunal awarded the claimant a basic award of £6,562 and a compensatory award of £14,500, along with pay in lieu of notice and untaken holiday.

A copy of the Judgement can be found here: Judgment

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