Employee unfairly dismissed for raising concerns about Covid safety in the workplace

Another case has been reported in relation to the impact of Covid-19 in the workplace. The Employment Tribunal in Gibson v Lothian Leisure has determined that an employee was unfairly dismissed for raising health and safety concerns regarding the employer’s Covid measures.

Background

The employee, Mr Gibson was employed as a chef for the Employer in February 2019. The Employer’s restaurant was closed in March 2020 as a result of the first lockdown and Mr Gibson was furloughed. Up until this point, he had no issues at work and had a good relationship with the Employer.   

In the lead up to the re-opening of the restaurant, Mr Gibson, was asked by the Employer via email on 11 April 2020 to come into work to help with certain tasks.

Mr Gibson lived with his father who suffers from various health conditions and so was shielding during the time. He raised concerns about returning to work following the Employer’s request, setting out that he was worried about the possibility of his father catching the virus from him.

The Employer provided no PPE for staff or other precautions to create a Covid-secure working environment. The Employer’s response to Mr Gibson’s concerns was “shut up and get on with it”. It was from this point that he believed that the Employer viewed him as a problematic employee despite their previous good relationship. 

On 30 April 2020, Mr Gibson received a text message from a director of the Employer without any prior discussion or process informing him that his employment was terminated with immediate effect. The message set out that the Employer was changing the format and running of the business and at the end of lockdown, intended to run the business with a smaller team.

Mr Gibson did not receive any notice pay or pay for accrued untaken holiday.

The Employment Tribunal’s Findings

The Employment Tribunal found that Mr Gibson had been unfairly dismissed under section 100(1)(e) of the Employment Rights Act 1996 (“ERA”). The circumstances of danger which he reasonably believed to be serious and imminent was the growing prevalence of the Covid infections and the potential and significant harm it could have had to his father. By raising the issue of the lack of PPE in the workplace, Mr Gibson was held to have taken an appropriate step to protect his father from the danger.

As the Employer’s reasons for dismissing him indicated that it was a redundancy situation, the Employment Tribunal held that alternatively, he had been unfairly selected for redundancy under section 105(3) of the Employment Rights Act because he had taken the steps set out above.

The Employment Tribunal awarded Mr Gibson a basic award of £5,562.00 and compensation of 29 weeks’ pay totalling £14,500.00.

In addition to this, as the Employer failed to pay notice pay and payment in lieu of accrued but untaken holiday, the Tribunal held that he was entitled to 1 weeks’ notice of £500.00 and was also entitled to £1,200.00 for 12 days’ accrued holiday.

Mr Gibson was also awarded payments for his additional claim for unlawful deductions from wages in relation to unpaid furlough pay and pension payments.

Points to consider

I am sure you will agree that the Employer here acted unreasonably and without real consideration to their employee’s concerns. There were no discussions about how they could alleviate Mr Gibson’s concerns and their response made it clear about how they felt about his concerns.

The Employer was oblivious of their obligation to give Mr Gibson his notice entitlement and his pay in lieu of accrued untaken holiday.

You might be wondering why the Employment Tribunal held that the Employee’s dismissal was unfair given his short period of service. In this case, it was held that the Employee’s dismissal was automatically unfair because he was dismissed for raising health and safety concerns at work. This is something that comes under the umbrella of automatically unfair reasons for dismissal (such as whistleblowing and maternity related dismissals) and so an employee does not need the requisite 2 years qualifying service to bring a claim.

It is therefore important to note that employee concerns regarding health and safety at work should be carefully considered and dealt with. With employees returning to work from furlough and to the workplace following working from home, it is likely that many will have questions surrounding their concerns about being in a Covid-safe environment.

We recommend that you always try to engage with your employees and open up discussions with those who raise concerns in order to alleviate their worries. Carrying out a regular risk assessment and agreeing measures (where possible) with Employees is likely to help the situation and encourage a return to work.

If you need any help with this or any other employee issue, then myself and my colleagues would be happy to help. You can contact us for a free initial consultation on 01983 897003.

Gibson v Lothian Leisure