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Disputes in the COVID-19 era: the Employment Tribunal (“ET”) considers dismissals relating to a refusal to wear a facemask and a belief in serious and imminent danger

Two recent ET decisions have shone some light on how employment disputes related to the COVID-19 pandemic will be considered by tribunals.

Although both are first instance rulings, and therefore are not of any binding authority, it is interesting to note the factors each ET deemed to be important when coming to their respective conclusions.

Was it fair to dismiss an employee for refusing to wear a face mask?

In Kubilius v Kent Foods Limited the ET considered whether it was fair to dismiss an employee for refusing to wear a face mask whilst attending a client’s premises.

The respondent employer was a distribution company and the claimant employee was one of its lorry drivers. The customer in question had made the decision that anyone on site must wear a face mask, though this was not reflected in the written site rules.

Whilst waiting in the cab of his lorry at a customer’s premises, the claimant was not wearing a mask and refused to do so when challenged by the customer’s staff. This incident was then reported to the respondent and the customer confirmed that they had banned the claimant from entering their site in the future (which the employer initially tried to resolve without success).

The employer subsequently dismissed the claimant for conduct reasons following an investigation into the incident, and the claimant argued that this dismissal was unfair as it was outside the range of reasonable responses.

The ET dismissed the claim and found that the dismissal was within the range of reasonable responses, reiterating that the question is not whether another employer would have imposed a lesser sanction but whether the dismissal was within the range of reasonable responses open to the employer.

The ET placed weight on the fact that the employer’s handbook stressed the importance of maintaining relationships with customers and there was a specific reference to follow the health and safety instructions on customer sites. The fact that the claimant showed no remorse or understanding and the impact of the ban were further reasons why the dismissal was deemed to be fair.

Was it fair to dismiss an employee who believed that there was serious and imminent danger of him attending work in light of the COVID-19 virus?

In Rodgers v Leeds Laser Cutting Limited the claimant claimed that he was automatically unfairly dismissed on the grounds that he refused to return to work and/or took steps to protect his family in circumstances where he believed COVID-19 posed serious and imminent danger. The right to such protection exists under section 100(1)(d) and (e) Employment Rights Act 1996 (“ERA”), and an employee does not need two years’ service to bring such a claim.

In dismissing the claimant’s claim the tribunal took into account the fact that the employer’s premises were large, measures were put in place to protect employees and only a handful of employees were working at one time. There was also no evidence of the claimant having raised concerns about workplace conditions with the employer (though the claimant made reference to his children being particularly vulnerable to COVID-19).

On the basis of these findings, the ET ruled that the claimant’s concerns about COVID-19 were general ones rather than concerns specifically related to the workplace. The tribunal rejected an argument that the very existence of COVID-19 created circumstances of serious and imminent danger, which in the ET’s view would enable employees to rely on section 100 ERA to refuse work in any circumstances simply due to the pandemic.

Practical Points to Note

These cases highlight the importance ETs will place on internal policies and procedures regarding COVID-19, as well as the steps employers have taken to mitigate the risks of COVID-19 in the work place. Employers should ensure that such policies are in place and that employees are aware of them in order to mitigate the risk of litigation.

Although each case will turn on its own particular facts, these cases emphasise the fact that ETs will approach COVID-19 related dismissals in the same way as any others.

The decision in Rodgers is particularly interesting, however, given that the ET ruled that a general fear of COVID-19, without any apparent concerns about the workplace, is insufficient to engage section 100 ERA.

If you are an employee with concerns about the safety of your workplace, you should raise these concerns in writing with your employer. Failure to do so will likely make it difficult to persuade a tribunal that you had specific workplace concerns if you subsequently refuse to attend work and attempt to rely on section 44 or section 100 ERA.

If you have any questions please contact Jonothan Scollen at [email protected].

Posted on Apr 19th, 2021 by Anthony Heywood

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