Covid-19 Related Dismissals & Employment Tribunals

The Covid-19 pandemic has thrown up many workplace conflict scenarios where the parameters of what it is permissible for an employer to do are blurred, due in no small part to there being no relevant case law providing guidance. However, Employment Tribunal cases arising from Covid-19 related dismissals last year are now coming through to hearings and decisions. Although Employment Tribunal decisions are not binding case law (the level of the court being too low) two recent ones that are noteworthy concerned in one case, a refusal to wear a mask and in another case a refusal to attend the workplace at all.

Background to the Case

The Claimant (employee) who refused to wear a mask was a delivery driver whose job was to take a tanker from his employer’s premises to be loaded at the site of a major supplier and then drive it away. Due to the pandemic the supplier site required that face masks were worn on site by all persons including visitors. Whilst in his cab and awaiting delayed paperwork, the employee refused to wear the mask that he was given and was repeatedly asked to wear by a representative of the supplier. He was willing to wear it whilst out of the cab and had done so previously. He was asked to wear it whilst in the cab on the basis that droplets may fall from his mouth from his elevated position whilst he was talking to persons below. He refused on the basis that he was not legally obliged to do so and his own cab was his own environment. The supplier reported the incident to the employer and barred him from their site. The employer invited the Claimant to a disciplinary hearing for ‘Failure to follow a Health and Safety Instruction from staff on a suppliers premises, regarding the current requirement to wear a face mask when on site.’.

Covid-19 Related Dismissals

The Claimant was dismissed and the Tribunal found the dismissal not to be unfair. Factors taken into account by the Tribunal were the Claimant’s lack of remorse or any commitment to do differently in future, there being no other work to provide to the Claimant that did not involve visiting that particular site and the Respondent’s (employer’s) emphasis in its employee documentation on maintaining good relationships with suppliers and customers including complying with their on-site requests and instructions. The Claimant’s assertion that there is no legal compulsion to wear a mask did not suffice. The second case tied in with the law that protects employees from being dismissed or subject to detriment if they leave work or refuse to attend work in circumstances that they reasonably believe pose a serious and imminent danger that cannot be avoided. A claim for being dismissed for this reason does not require two years’ qualifying employment, unlike “ordinary” unfair dismissal. The Claimant’s workplace remained open in March 2020 and onwards, it was a manufacturing operation and the work could not be done at home. The Respondent (employer) implemented measures to combat the spread of Covid-19. These included adhering to social distancing, wiping down surfaces, staggering arrival times and putting up reminders on handwashing. When a colleague of the Claimant displayed Covid-19 symptoms and began self isolating, the Claimant informed his employer that he would not return to work until the situation eased. This was out of concern for his children, one of whom had sickle cell disease and one of whom was only seven months old. The Claimant was dismissed and submitted a Tribunal claim that he was dismissed due to leaving work where there was a serious and imminent danger. The Respondent presented evidence that the workplace did not pose an imminent or serious danger due to its size, the limited number of employees and the measures implemented to prevent the spread of Covid-19. It was, therefore, not a reasonable belief to consider there to be a serious and imminent danger. The Claimant could also have reasonably avoided any risk by following the guidance in place and by adhering to social distancing. The claim did not succeed.

Essential Guidance for Employers

• These cases show that there is no blank cheque to refuse to wear a mask to restrict infection or to refuse to attend work due to Covid-19. But employers should take note that there is also no blank cheque to dismiss for those reasons either.
• Each case will depend on the specific facts, so for example where a person refuses to wear a mask the reasons should be investigated before any action is taken and if the reasons have any validity then workarounds must be explored.
• In the above case the Respondent could not provide other work where not wearing a mask in the cab did not matter. In the second case, there may have been a different outcome if the Claimant had over two years’ service and could have claimed ordinary unfair dismissal.
• Failure to take into account the overall circumstances and reasons for the employee action and to explore alternatives, such as leaving the employee on unpaid leave, could render a dismissal for staying away due to Covid-19 unfair.

Don't struggle with Covid-19 related dismissals and HR issues on your own. Get in touch with our team of expert HR Consultants for legal advice you can trust.