We are now beginning to see more case law relating to Covid-19 pandemic, and I found the case of Mr Ham v Esl Bbsw Ltd ET/1601260/2020 to be particularly interesting.
The case relates to an employee who was dismissed for failing to follow a reasonable management instruction. The instruction being to deliver equipment to the home of their manager, who was self-isolating due to them having Covid-19 symptoms.
In this case the Employment Tribunal found that Mr Ham had been automatically unfairly dismissed for raising health and safety concerns.
The facts of the case are that Mr Ham was asked to pick up equipment from a school. Mr Ham queried where the equipment should be stored, as well as whether the journey was essential, given the travel restrictions imposed by the Government. His manager requested that he deliver the equipment to her home. His manager was at that time self-isolating as she and her daughter had Covid-19 symptoms.
Mr Ham questioned the request, as he considered attending the home of an individual who was self-isolating to be risky. His manager then ended the call and called him back sometime later to dismiss him for failing to follow a reasonable management instruction.
Mr Ham appealed the dismissal and raised concerns about his and his family’s health. However, his appeal was not upheld.
The Employment Tribunal found that the principal reason for Mr Ham’s dismissal was that he had raised health and safety concerns, making the dismissal automatically unfair under section 100(1)(c) and (e) of the Employment Rights Act 1996.
The Employment Tribunal confirmed it was inconceivable to believe that an employee who was instructed to attend the home of an individual who was self-isolating, was not raising health and safety concerns or would take appropriate action to protect themselves.
Within the Judgement the Judge made a point of stating that the manager, who was self-isolating, had not been vaccinated as the incident occurred at the start of the pandemic. The suggestion being that perhaps the outcome would have been different, had the manager been vaccinated.
The case highlights the need for employers to ensure they seriously consider what action and sanction is appropriate where they consider an employee has failed to follow a reasonable management instruction, as while this is an extreme case, it does highlight potential problems.
Mr Ham did not have two years’ service, and therefore I suspect the employer believed the risk of dismissal was low, not taking into consideration the potential risk from the health and safety perspective. Remember there are certain claims which can be pursued, without the requirement for the employee to have two years’ service.
I therefore always recommend you seek advice before taking disciplinary action or seeking to dismiss an employee, as there could be a potential risk which has been missed.