Dismissal for refusing to work on Covid-19 related grounds ruled unfair
The Employment Tribunal has found that an employee was unfairly dismissed for refusing to work on Covid-19 related grounds, in one of the first decisions around employment law during the pandemic.
Mr Preen was employed by Coolink Limited as an air conditioning and refrigeration engineer. His work included both routine maintenance and reactive repairs in a variety of locations, including hospitals, the food industry and private homes.
On the evening of 23 March 2020, the Prime Minister announced that from that day, people should only leave their homes in very limited circumstances, including travel to and from work, but only where that was “absolutely necessary” and could not be done from home. These restrictions were included in the Coronavirus Act 2020 which received Royal Assent on 25 March 2020.
Mr Preen had a job booked in for 24 March 2020, and this was for a routine maintenance as opposed to an emergency repair. He contacted his employer after the Prime Minister’s announcement by WhatsApp and said “…we all have a responsibility to do what’s being asked. Therefore I am going to stay at home and would urge you to do the same. I understand that if any call out is urgent and / or essential I will come in to help out of course but unless this is the case I think it best we all do what’s being asked.”
Mr Preen’s evidence to the Tribunal was that he did not consider routine maintenance to be a lawful reason to leave home, and was concerned about the risk to himself, colleagues and customers. He said that he genuinely believed that it was unsafe to go to work. In response to Mr Preen’s refusal to attend work, he was dismissed. His employer told him that he could not afford to pay him if he was not going to come to work.
Mr Preen claimed that his dismissal was automatically unfair pursuant to section 100 of the Employment Rights Act 1996. This states that an employee is unfairly dismissed if the principal reason for his dismissal is that he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potential harmful to health or safety.
The Tribunal found that the WhatsApp message sent by Mr Preen on 23 March 2020 did bring circumstances connected with his work to his employer’s attention which he believed were potentially harmful to health and safety. The Tribunal also found that Mr Preen did reasonably believe that going to work, other than for emergencies, would put himself and others at unnecessary risk. This was the principal reason for his dismissal, and that dismissal was therefore automatically unfair.
Esther Marshall, Senior Associate Solicitor in our Dispute Resolution department, said:
“The pandemic was, and continues to be, extremely challenging for many employers and employees. Employers had to react to ever changing regulations and guidance, and it is inevitable that some of the decisions made will, with the benefit of hindsight, be found to be wrong.
This case turned on quite a specific set of facts, and the timing around the Prime Minister’s announcement on 23 March 2020 along with the distinction between routine and emergency work featured heavily in the Tribunal’s decision. It is not the case that all unfair dismissal claims arising out of the pandemic will go the same way.
The Tribunal did stress that it is important that Employees should be able to raise genuine and reasonably held concerns about health and safety, without fear of being dismissed as a result. The key is that those beliefs are both reasonable and genuine.