COVID-19 Employment Tribunals

legal updates

On 26 March 2020, the Coronavirus Act 2020 came into force, making lockdown enforceable by law.

Read our disclaimer keyboard_arrow_down

This website content is intended as a general guide to law as it applies to the motor trade. Lawgistics has taken every effort to ensure that the contents are as accurate and up to date as at the date of first publication.

The laws and opinions expressed within this website may be varied as the law develops. As such we cannot accept liability for or the consequence of, any change of law, or official guidelines since publication or any misuse of the information provided.

The opinions in this website are based upon the experience of the authors and it must be recognised that only the courts and recognised tribunals can interpret the law with authority.

Examples given within the website are based on the experience of the authors and centre upon issues that commonly give rise to disputes. Each situation in practice will be different and may comprise several points commented upon.

If you have any doubt about the correct legal position you should seek further legal advice from Lawgistics or a suitably qualified solicitor. We cannot accept liability for your failure to take professional advice where it should reasonably be sought by a prudent person.

All characters are fictitious and should not be taken as referring to any person living or dead.

Use of this website shall be considered acceptance of the terms of the disclaimer presented above.

There are now a number of Employment Tribunal decisions in relation to disputes concerning COVID-19 and, unsurprisingly, health and safety issues are consistent themes running through them.

S100 of the Employment Rights Act 1996 provides protection from unfair dismissal for those with less than two years’ employment where they have been dismissed for raising legitimate concerns about health and safety at work.

One such case is Mr Ham v ESL BBSW Ltd.  Mr Ham started working for ESL BBSW Ltd as an area supervisor in November 2019.  On 9 March 2020, Ms Kocinska was appointed by ESL as Mr Ham’s line manager.

On 16 March 2020, the nation was instructed to cease all non-essential contact and travel, following which we were put into lockdown on 23 March 2020 and told to stay at home.  On 26 March 2020, the Coronavirus Act 2020 came into force, making lockdown enforceable by law.

On 27 March 2020, Ms Kocinska, who was self-isolating at home due to COVID symptoms, emailed Mr Ham and asked him to collect some items from a school (a client of ESL’s) and deliver them to her house.  Mr Ham did visit the school, but refused to deliver the goods to Ms Kocinska, arguing this would amount to a health and safety violation.

Ms Kocinska subsequently dismissed Mr Ham on 30 March 2020 on the grounds that he had failed to follow reasonable management instructions and that he had a bad attitude.

Mr Ham subsequently brought a claim for automatic unfair dismissal to an employment tribunal, arguing he had been dismissed for raising legitimate concerns over his health and safety at work, in being asked to load and unload his van at Ms Kocinska’s house, where she and her daughter were isolating with suspected COVID symptoms.

The employment tribunal held that Mr Ham had been automatically unfairly dismissed from his employment, as he had been dismissed by ESL for raising, by reasonable means, circumstances of danger which he reasonably believed to be serious and imminent, and took appropriate steps to protect himself from danger.

The tribunal concluded the dismissal was in principle about the claimant raising concerns about his health and safety.  They acknowledged there may have been an issue with the “tone” taken by Mr Ham, but found this would not have arisen independent  of the health and safety concerns.

The tribunal recognised the timing was relevant, concluding:

HR ManagerSo simple even a child could use it

HR Manager is designed to assist employers manage their legal obligations in relation to Employment Law, Human Resources, Health & Safety and Data Protection. Fully utilising HR Manager will demonstrate best practice, assist in the meeting of legal obligations and show due diligence.

“In the context of the uncertainties and fears of late March last year and the death toll since then, it is inconceivable that an employee being instructed to go to a house where two people were self-isolating with suspected COVID symptoms, was not raising concerns that he ‘reasonably believed were harmful or potentially harmful to his health and safety’ or that he was seeking to take ‘appropriate steps to protect himself from danger in circumstances in which he reasonably believed to be serious and imminent.”

Mr Ham was awarded one year’s gross salary (£16,640) as compensation for the termination of his employment.

In contrast, in the case of Mr D Rodgers v Leeds Laser Cutting Ltd, the tribunal found Mr Rodgers was not automatically unfairly dismissed for raising legitimate concerns about health and safety and refusing to attend work on the basis of the risk to his vulnerable family member.  His employer had taken all reasonable steps to ensure the workplace was safe.  The employment judge concluded:

“….the Claimant’s decision to stay off work was not directly linked to his working conditions I find that this is not a case where the claimant refused to return to his place of work, or any dangerous part of his place of work due to the conditions in that environment; he refused to return to his place of work until the national lockdown was over. I cannot conclude that the decision to absent himself, regardless of what the situation might be at the workplace, until a national change was made, can lie at the door of the Respondent. For that reason, and for those set out above, in my judgment, the criteria in this paragraph are not made out.”

Polly DaviesLegal AdvisorRead More by this author

Related Legal Updates

Claims of harassment related to age and sex

Mr King was found to have crossed the line by making reference to Mr Finn’s appearance which had created an intimidating, hostile, degrading, humiliating, and/or offensive environment.

ACAS conciliation

Employers can also contact ACAS directly for assistance in mediation with a former employee.

Pandemic impact on annual leave entitlement

The change in March 2020 allowed for four weeks of annual leave to be carried over. So, as a reminder, any carried over leave must be used in 2022!

“Your hours cut or you’re fired!” ultimatum resulted in an unfair dismissal finding

Employment contract variation is a matter which should be approached with care and any opposition should not be written off without consideration.

See you in court… in a year or so…

Before deciding to issue or defend proceedings, it is important to consider how court delays may impact you as a business and as an individual.

End of COVID-19 restrictions – Employment implications

Until 24 March 2022, Statutory Sick Pay (SSP) will continue to be available to employees who self-isolate.

A word of caution – Dismissal of an anti-vaccination employee ruled to be fair

Does this decision lend grounds for employers to dismiss staff refusing a COVID-19 vaccine at present?

Get in touch

Complete the form to get in touch or via our details below:

01480 455500

Vinpenta House
High Causeway

By submitting this quote you agree to our Terms & Conditions and Privacy & Cookies Policy.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.