Unfair dismissal – health and safety case
Unsurprisingly, Employment Tribunals are now hearing cases brought by employees dismissed for Covid-related reasons. One such case which was heard in the Employment Appeal Tribunal is reported below.
In Rodgers v Leeds Laser Cutting Ltd, the Employment Appeal Tribunal upheld the decision of an employment tribunal that it was not automatically unfair to dismiss an employee who refused to attend work over concerns about the risk of Covid-19 to his vulnerable children.
Mr Rodgers refused to attend work during the first national lockdown because he had vulnerable children who could become very ill if they caught Covid-19. He was dismissed and claimed that he had been automatically unfairly dismissed under section 100(d) Employment Rights Act 1996 (health and safety cases) because he had exercised his right not to return to the workplace to protect himself from circumstances of danger, which he had reasonably believed were serious and imminent and which he could not reasonably have been expected to avoid.
A tribunal dismissed the claim. Mr Rodgers had general concerns about Covid-19, but these were not directly attributable to the workplace. The workplace was a large warehouse type space with only a few employees working on the shop floor. Further, his actions, for example, not wearing a facemask, leaving his home during self-isolation, and working in a pub during lockdown, did not support his argument that there were circumstances of danger which he believed were serious and imminent.
Mr Rodgers appealed. The EAT found that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious and imminent, within the workplace, but that he considered that there were circumstances of serious and imminent danger all around. The Claimant had not indicated to his employers that he would return if improvements were made. He intended, seemingly regardless, to remain absent until the national lockdown was over.
The EAT also held that the tribunal had been entitled to find that the Claimant could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands. The appeal was dismissed.
Changing terms and conditions of employment – ACAS guidance
Many businesses have changed business models during the pandemic, including a significant shift to remote working. Some employers are now seeking to implement these changes on a permanent basis by moving to a fully remote working arrangement or a mixed arrangement. Employers’ premises may also have moved.
Implementing these changes may require a change to the terms and conditions in employment contracts.
Where the employee agrees to these changes, there should be no dispute. However, in situations where the employee disagrees with these or other changes to their terms and conditions, employers may be tempted to ‘fire and re-hire’.
ACAS has published helpful guidance on changing terms and conditions of employment aimed at maintaining good employment relations. The guidance advises on the legal, reputational and organisational risks, the options available and emphasises the need to consult fully with employees. The guidance is available at https://www.acas.org.uk/changing-an-employment-contract/employer-responsibilities
The above information is for guidance only and is not a substitute for legal advice in individual cases.
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