Employment law latest

01 June 2022

In each issue, Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different employment law cases

Covid concerns not valid reason for refusing to work

An employee, who was dismissed for his refusal to work due to perceived dangers posed by the Covid pandemic, has lost his appeal for automatically unfair dismissal. In Rodgers v Leeds Laser Cutting Ltd, the claimant started working in a warehouse in 2019, which was described to be the size of half a football pitch. In total, he would typically work with five other people each day. Following the first lockdown announcement in March 2020, the warehouse remained open, in line with government guidelines for essential services.

The respondent put measures in place to control the risk of Covid transmission and keep workers safe, including:

social distancing
regular cleaning of workstations
staggered start and finish times
the voluntary use of facemasks, which were provided.

In late March 2020, the claimant developed a cough which he attributed to dust in the warehouse, but couldn’t get a Covid test to be sure, so decided to self-isolate. He obtained an isolation note from NHS111. He later texted his manager to inform him he was going to stay off work until the lockdown had eased. He didn’t want to risk bringing Covid home to his children, as one was particularly vulnerable due to having sickle cell anaemia. His manager responded to say: “Okay, mate, look after yourself.”

No further communication took place until 24 April 2020, when the claimant received his P45 in the post. He subsequently raised a claim for automatic unfair dismissal under Section 100 of the Employment Rights Act 1996. Section 100 refers to employees’ rights not to be subjected to detriment, when taking reasonable steps to protect themselves or others from serious and imminent danger, which they can’t be reasonably expected to avoid. Specifically, the claimant asserted he had been unfairly dismissed, as the reason for his non-return to work was due to the serious and imminent danger posed by the Covid pandemic, for which allowances should have been made.

The employment tribunal (ET) accepted that the pandemic created some element of danger at work, but the risk of danger was no greater in the workplace than anywhere else. The ET questioned the reasonableness of the claimants’ belief. In making the decision, the employment judge specifically considered the fact that the workplace was large with few employees, so keeping a safe distance was generally possible. Additionally, the employee:

didn’t ask for a mask when they were readily available
had driven a friend to the hospital when he was supposed to be isolating
worked in a pub during lockdown.

As a result, his claim was dismissed.

On appeal, the employment appeal tribunal (EAT) agreed fully with the ET decision and upheld the original outcome. It is, however, important to note that the tribunal stated a claim for ordinary unfair dismissal would likely have been successful, had the employee had the necessary service to bring it, due to the employer’s failure to follow a reasonable dismissal procedure.

Similarly, although the outcome will be welcomed by employers, it must be realised that the circumstances of the case were very fact specific. It wasn’t the fact that the claimant refused to come into work due to safety concerns that was the issue, it was that he failed to demonstrate what these concerns were. Had he done so, and had these been valid concerns ignored by the organisation, the outcome may have been very different. Therefore, employers should take all health and safety complaints seriously, and complete a full investigation, with measures implemented as necessary, to appease staff concerns in this regard.

Employee faced discrimination arising from disability due to hot-desking policy

The ET recently concluded that an employee was treated unfavourably and discriminated against after asking colleagues not to use her desk, since it had been adapted to meet her health requirements.

In Baker v House of Commons Commission, the claimant was a long-serving member of staff, who had been diagnosed with a musculoskeletal condition, meaning she required specialist equipment. This included the provision of an orthopaedic chair, adapted keyboard and mouse, and a reading / writing slope, all of which were concisely arranged at her workstation. This was to minimise her pain and make the environment more comfortable for her needs.

In June 2018, the claimant was absent from work for one month following an injury. On her return to the office, she found that, as part of the organisation’s hot-desking policy, others had been using her desk, causing the space to be completely repositioned. The claimant experienced difficulties when getting it back to the most effective setup. She raised the issue with her line manager and was told that it wasn’t practicable to reserve a desk, but that they could assist with readjusting the equipment.

In September 2018, an occupational health report recommended that a dedicated workspace was given to the claimant. This would mean her equipment would remain permanently unaltered, thus alleviating the discomfort with constantly rearranging. Later in the month, the claimant was absent for one day, so left a ‘polite’ note asking for her desk not to be used. However, on her return, it was evident someone had again utilised her space and moved her equipment out of alignment. The claimant was subsequently subjected to a disciplinary procedure for the use of an ‘unreasonable’ note.

While the disciplinary case was later dropped, it still caused significant distress to the complainant. As a result, she raised claims for failure to make reasonable adjustments, discrimination arising from disability and victimisation to the ET, all of which were successful. The ET decided that the respondent failed to make sufficient reasonable adjustments to accommodate the claimant’s disability, as they took no steps to prevent others from using the desk in the claimant’s absence. It further found that the hot-desking policy would have put her at a significant disadvantage, by not only discomforting her, but also exposing her to risk of injury.

Similarly, the ET found that the claimant would reasonably have considered that her continued employment was potentially prejudiced by the commencement of disciplinary action and would reasonably have felt worried by the threat of such action. This led them to conclude the respondent had victimised the claimant and that she had been subject to discrimination arising from her disability.

The case highlights the importance of implementing reasonable adjustments, so far as practicable, for employees with underlying health conditions. Disabled employees should be factored into the decision-making process when considering the implementation of hot-desking, or similar, policies. Additionally, wider workplace training and communication may be needed to ensure a genuinely inclusive environment, with a zero-tolerance stance against any form of bullying, discrimination or harassment.

Dismissal for miscarriage-related absence amounts to sex discrimination

The ET case of Stokes v Glenham Property Management Ltd highlighted the protection afforded to employees who suffer a miscarriage during their employment. Specific legal protection (pregnancy / maternity discrimination) is already in place for those who are pregnant, on maternity or for two weeks after a miscarriage (the protected period). But the ET had to assess whether an employee was subject to sex discrimination, associated with miscarriage, outside of the protected period.

The claimant, Stokes, had been employed by the letting agency for over a year. Her employment started well but took a turn when she disclosed that she was pregnant. Unfortunately, Stokes later miscarried the baby. Since this happened before 24 weeks’ pregnancy, she wasn’t entitled to maternity leave or pay. She was also only protected from detriment or dismissal for a period of two weeks following the miscarriage.

Stokes took a period of pre-booked annual leave then was signed off sick, by reason of miscarriage, before returning to work. Soon after, without advance notification or due process, she was dismissed with a letter stating she was ‘not fit to complete (your) role’, and that another sick note couldn’t be accepted. A second dismissal letter was sent almost two weeks later, citing the economic climate and her failure to complete her role, resulting in poor performance, as the amended reasons for dismissal.

The ET upheld that the dismissal was fundamentally a result of her miscarriage-related absence. In determining whether this was sex discrimination, the ET had to consider a hypothetical comparator. In this case, they concluded that if a comparable male employee took the same amount of time off as sick leave for other reasons, they wouldn’t have been dismissed in the same way. As such, the ET found that the miscarriage was the reason for the dismissal, which is a unique and protected characteristic to females. Stokes was awarded £10,500 in compensation, which included a £7,000 award relating to injury to feelings.

The judgement serves as a reminder to employers that, even when the protected period has ended, the protection afforded to employees does not. A dismissal, or any other action which places the individual at a detriment, can be found to be discriminatory if the main reason for the action is related to pregnancy and / or sex.

To avoid such claims arising, employers should ensure they provide adequate support for both the employee’s physical and mental health. They should check that appropriate reasonable adjustments are in place to facilitate the employee’s continual employment. Adopting a supportive approach in difficult situations such as this will be hugely beneficial for employers in the long run. They will reap the rewards of a more motivated, satisfied and productive workforce, with reduced turnover and improved engagement.