Employee who refused to visit manager’s property during lockdown was automatically unfairly dismissed on health and safety grounds

Tribunal decision offers useful insight into how employers may have been exposed to claims during the pandemic.

The sudden onset of the Covid-19 pandemic in March 2020 led to a variety of responses from employees and employers. These circumstances created unique problems and new potential liabilities. Indeed one aspect of this, covered in our article from January 2021: ‘Refusing to work because of fears about Covid-19 – section 44 of the Employment Rights Act’, was that employers faced claims under sections 44 and 100 of the Employment Rights Act 1996 (ERA) if employees refused to work, or left work, as a result of holding a reasonable belief that there was a perceived serious and imminent danger in the workplace caused by Covid-19.

This potential risk was compounded by the fact that there was very little case law on these provisions meaning employers and their advisers were left with little guidance as to how these provisions would be interpreted in the context of the Covid-19 pandemic.

A recent tribunal decision has provided some useful indicators to these points.

Case: Ham -v- Esl Bbsw Ltd [2021]

Mr Ham started employment for Esl, a cleaning company, in November 2019 as an area supervisor. He had a six-month probationary period. On 16 March and 23 March 2020 the Prime Minister addressed the UK and stated, respectively, that all non-essential contact and travel should cease, that a national lockdown would come into force, and that all those not required to do otherwise should ‘stay at home’. The lockdown became legally enforceable on 26 March.

On 30 March 2020 Mr Ham’s supervisor contacted him via telephone to ask him to pick up cleaning equipment Esl had at a client’s premises and bring it to her house for storage. The supervisor was isolating at home as both she and her child had symptoms of Covid-19. The precise details of these calls would be disputed, but Mr Ham claimed that he queried if this was a good idea given the recently announced travel restrictions and the supervisor’s self-isolation as he was concerned about his health and the health of his family if he carried out these instructions.

The precise events are not clear, but it seems that as part of this exchange Mr Ham was told he was dismissed for failing to carry out a reasonable management instruction and for an inappropriate attitude on the phone.

Mr Ham appealed his dismissal, but the decision was upheld by the Esl’s CEO. Mr Ham subsequently brought claims for automatic unfair dismissal on health and safety grounds, contrary to s.100(1)(c) and/ or (e) ERA, which provides that if an employee can show that the reason or principal reason for their dismissal was that:

• being an employee at a place where there was no safety representative or committee, he brought to his employer’s attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety; or
• in circumstances of danger which he reasonably believed to be serious and imminent, he took or proposed to take appropriate steps to protect himself or others from the danger,

then they are automatically unfairly dismissed.

Esl sought to defend the claim by denying that Mr Ham had raised any concerns about the potential risks of attending his supervisor’s house, rather that he had simply not wanted to go to the client’s premises to collect the equipment and that he had been unpleasant to his supervisor on the phone.  

The Tribunal upheld Mr Ham’s claims based on the evidence presented, finding that Mr Ham’s witness evidence was more consistent and reliable than that provided by his supervisor and the CEO of Esl. Based on this, the Tribunal found that his concern was with attending the supervisor’s house due to concerns about Covid-19 and that he was dismissed wholly or principally for this reason.

Wrigley's comment

When potential claims under s.100 ERA were identified, employment law commentators queried whether employers were most at risk at the start of the pandemic rather than in the months (and years) following the initial outbreak, when more was known about the virus and various protections and mitigations were put in place. This was touched on in the Tribunal’s decision at para 9.4, where it considers it ‘inconceivable’ that an employee in Mr Ham’s position at that time would not be raising concerns he reasonably believed were harmful or potentially harmful to his health and safety, or that he was not seeking to take appropriate steps to protect himself from a danger he believed to be serious and imminent.

In addition, it highlights the potential liabilities employers face in such cases because, if proven, dismissal on these grounds is automatically unfair meaning employees do not need two years’ service as in standard unfair dismissal claims. Mr Ham had been employed for five months when he was dismissed and was awarded more than £16,000 in compensation by the Tribunal.