As highlighted in May's edition of Law at Work the recent COVID-19 pandemic has provided a catalyst to health and safety claims made in the employment tribunal.

Individuals are increasingly aware of the obligations owed to them by their employers, particularly in the context of coronavirus related government guidance to businesses.

The three tribunal cases below were all brought by employees claiming automatically unfair dismissal on health and safety grounds under s100 Employment Rights Act 1996 (ERA). To succeed, there must be:

• circumstances of danger which an employee reasonably believes to be serious and imminent
• they take (or propose to take) appropriate steps to protect themselves or others from the danger.

The cases demonstrate how the employment tribunals are currently applying the test in relation to steps employers are taking in the face of the pandemic.

Dismissal of employee who remained in Italy at outbreak of pandemic due to concern about risk of coronavirus infection

In Montanaro v Lansafe Ltd Mr Montanaro, who worked for his employer in London and provided services to its client Boohoo, believed he had permission to take holiday on 9 and 10 March to go to his sister's wedding in Italy. However, on 9 March Italy entered lockdown due to the pandemic and UK government guidance required 14 days' isolation on return from Italy. On 10 March Mr Montanaro's employer told him to wait in Italy for instructions, but a day later sent a letter to him in London dismissing him with effect from 6 March for failing to follow company procedures and taking unauthorised leave. Mr Montanaro, unaware of this, continued working remotely from Italy for Boohoo and informed his employer about Italian travel restrictions, but was then sent his P45 by email on 1 April.

Mr Montanaro successfully brought a claim for automatically unfair dismissal on health and safety grounds, under s100 ERA. The employment tribunal considered, by reference to the circumstances and particularly Mr Montanaro's knowledge of the facts at the time whether:

• there were circumstances of danger. It held that there were because the pandemic presented a risk of catching a contagious virus which could lead to serious illness and death
• Mr Montanaro reasonably believed the danger was serious and imminent and concluded that he did, from the information available
• he took steps to protect himself and others. Mr Montanaro notified his employer and asked for advice, instructions and assistance with documentation, and complied with the instruction to have his mobile and laptop on so he could receive instructions quickly and be able to communicate. When he didn't hear from his employer he communicated direct with Boohoo and continued his work on a day-to-day basis. The tribunal held that these were appropriate steps and that they constituted communicating the danger to his employer and so far is he could explain the position as fully as was possible in the circumstances.

The tribunal concluded that Mr Montanaro had been automatically unfairly dismissed on health and safety grounds. It also found that his employer's evidence as to the reason for his dismissal because he had taken unauthorised leave was not credible "and indicative of entirely unreasonable behaviour". It noted that an employee who was trying to take leave of absence without permission would not draw attention to himself by sending emails requesting absence.

Given public information at this time was very confusing and changed rapidly, clear communication between an employer and their employee was particularly important.

Dismissal of employee who raised health and safety issues that lack of COVID-secure workplace measures could be a risk to his to his clinically vulnerable father

Rather than being concerned for his own wellbeing, in Gibson v Lothian Leisure Mr Gibson raised health and safety issues with his employer about the lack of PPE or other workplace COVID-secure measures, out of concern for his clinically vulnerable father.

Mr Gibson, a chef, was furloughed from a restaurant owned by Lothian Leisure due to the first COVID-19 lockdown in spring 2020. However, when asked to come into work prior to the restaurant reopening, he raised concerns with his employer about the possibility of his father catching COVID-19 from him on his return to work due to the lack of PPE or other COVID-secure workplace precautions. His employer's response was that no personal protective equipment was available for staff, that they had no intention of requiring staff to take precautions and create a COVID secure working environment. He was told to "shut up and get on with it". Lothian Leisure then summarily dismissed Mr Gibson by text message stating that it was changing the format of the business and would be running it with a smaller team after the lockdown.

The employment tribunal held that Mr Gibson had been unfairly dismissed under s100 ERA. The circumstance of danger was the growing prevalence of infections by coronavirus and the potential significant harm that could be done to his father should be contract the virus. He had taken steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger by raising the issue of PPE with his employer. Alternatively, the tribunal found that due to the wording of the dismissal text that Mr Gibson was unfairly selected for redundancy because had taken those steps to protect his father.

These cases are often fact specific and will require an investigation of what poses a "serious and imminent" danger. In the case of Mr Gibson, had his employer been able to demonstrate that it had conducted a COVID-19 health and safety risk assessment, and that it had considered and put in place appropriate PPE and other workplace safety measures, then a refusal to come into the workplace may not have been justified. By contrast, in Rodgers v Leeds Laser Cutting Ltd an employment tribunal decided that an employee was not automatically unfairly dismissed when he decided to stay away from work during the first national lockdown out of a generalised fear that his children would contract COVID-19 from him being at greater risk in the workplace. Something more than a fear of the national situation would have been required to protect this individual, something particular to his work or workplace, or indeed his own vulnerabilities.

Although employment tribunal decisions are not binding on later cases, employers who can demonstrate appropriate COVID-19 health and safety measures are more likely to successfully defend an employee's health and safety claims under s100 ERA.

Employee who expressed concerns about travelling to the office during lockdown and seeking to be furloughed was not unfairly dismissed

In Accattatis v Fortuna Group (London) an employment tribunal found that an employee who said he felt uncomfortable commuting and attending the office during lockdown and asked to be furloughed was not automatically unfairly dismissed under s100 ERA.

Mr Accattatis had repeatedly asked his employer in the spring of 2020 if he could work from home or be placed on furlough as he was uncomfortable using public transport and working in the office. He was told that his job could not be done from home, and furlough was not possible because the business was so busy. Instead he could take holiday or unpaid leave. After several requests Mr Accattatis was dismissed by email. He hadn’t been employed long enough to make an ordinary unfair dismissal claim so alleged he had been automatically unfairly dismissed under s100 ERA for having taken steps to protect himself from danger.

The tribunal agreed that given the Government announcement on 14 February 2020 that coronavirus constituted a serious and imminent threat to public health. Objectively, it found that there were circumstances of danger which an employee could reasonably have believed to be serious and imminent and subjectively Mr Accattatis, from his emails, reasonably believed that to be the case too.

However, this was not the case on the question of whether he did take or proposed to take appropriate steps to protect him or other persons from the danger or take steps to communicate these circumstances to his employer by appropriate means. Here the tribunal decided that Mr Accattatis's response that not only did he want to stay at home (which was agreed – either by taking holiday or unpaid leave), but also to demand that he be allowed to work from home (on full pay) or be furloughed (on 80% of pay), were not appropriate steps to protect him from the danger, so his claim failed.

Again, this decision is not binding on later cases, but does show that the pandemic of itself does not justify a refusal to go to work for health and safety reasons under s100 ERA, where an employer has considered how it can reasonably accede to an employee's concerns.

Conclusion

While up to now the position for COVID-19 health and safety measures including on face coverings and social distancing has been the subject of legislation and guidance, from 19 July the position has become more complex. The Government has shifted the focus from one of corporate to individual responsibility. Successfully defending health and safety claims under s100 ERA will require employers being clear on how they can demonstrate that they are continuing to keep employees safe in the workplace despite the recent easing of restrictions. Providing staff with a mechanism to air any concerns and clear communication will be key.