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Employee dismissed during Covid-19 subject to Unlawful Detriment

This article considers the recent Employment Appeal Tribunal (EAT) decision in Goldstein v Herve [2024] EAT 35 which considered an employee’s concerns about travelling to work and attending her workplace during the COVID-19 pandemic.

The Covid-19 pandemic has had a sizeable impact on working practices, with many employers adopting a ‘Work from Home’ policy at an early stage in response to the numerous periods of lockdown where the government provided guidance which suggested that those who could work from home, should do so. This was a welcome move by many during the pandemic and in particular, those categorised as “high risk individuals” due to their health.

By virtue of the Employment Rights Act 1996 (the “ERA 1996”) employees have the right not to be subjected to any detriment or to be dismissed where they raise circumstances connected with their workplace in which they believe to be harmful or potentially harmful to health and safety. Additionally, an employee has the right not to be subject to a detriment where they reasonably believe there to be serious and imminent harm and they subsequently take steps to protect themselves from that danger, for example, by leaving or proposing to leave the workplace.

The EAT has recently considered whether an Employment Tribunal (“ET”) was correct in their findings to uphold claims of health and safety detriment and constructive unfair dismissal under the Employment Rights Act which arose from an employee’s concerns regarding travelling and attending her workplace during the second national lockdown.

The Claimant had been working for Mr G as a personal assistant since 2009. The Claimant would carry out her work at Mr G’s home in a separate office area which was used by Mr G and his wife. During the first lockdown, the Claimant worked from home as her partner was identified as “high-risk”. In May when Mr G and his wife were abroad, the Claimant began attending Mr G’s home on an ad-hoc basis for work purposes. When Mr G and his wife returned in September, there was a lack of social distancing in the home and neither parties were consistent with wearing face coverings. This arrangement continued for a short while with the Claimant agreeing to attend Mr G’s home once a week and to avoid travelling at peak times on public transport.

In November 2020, the Claimant informed Mr G that she would be working from home in line with government guidance following the start of the second national lockdown. Mr G responded and said that the guidelines did not apply to working in people’s homes and that the Claimant should continue to attend his home as he was concerned that the quality of her work was lower when working remotely. Mr G’s interpretation of the government guidelines was subsequently found unreasonable by the ET The Claimant subsequently went off sick with work-related stress and resigned two days later.

Mr G subsequently emailed the Claimant and accused her of pretending to be sick, suggesting that she had caused potential damage and loss to his business. Mr G also failed to pay the Claimant outstanding wages, notice pay and accrued but untaken holiday. The Claimant subsequently pursued clams for health and safety detriment, automatic unfair dismissal for health and safety reasons and unfair dismissal under the ERA 1996.

The ET upheld the Claimant’s claim of unfair dismissal under section 100 of the ERA 1996 and claims for health and safety detriment under section 44 of the ERA 1996. The ET agreed that Mr G’s actions (including his insistence on her attending the office) were likely to have destroyed trust and confidence and on that basis, found the Claimant had been constructively dismissed. No potentially fair reason for the dismissal was identified and as Mr G’s actions were in response to the Claimant’s refusal to return to the workplace, this gave rise to an automatically unfair dismissal under the ERA 1996. The tribunal also commented that criticising the Claimants’ work, failing to pay the Claimant’s wages, notice pay and holiday pay were all detriments suffered by the Claimant as a result of her refusing to return to work.

Mr G appealed to the Employment Appeal Tribunal (the “EAT”) and his appeal was subsequently dismissed by the EAT who upheld the initial decision reached by the Employment Tribunal. The EAT stated that the ET was entitled to find that the concerns raised by the Claimant, namely her concerns regarding travelling to and attending her place of work, were “connected with” her work for the purposes of section 44 of the ERA 1996 (which differentiated it from more general claims) and, accordingly, that her refusal to attend work, was an appropriate step to take. In addition, the Claimant had told Mr G that there were circumstances connected with her work which she reasonably believed were harmful to health and safety.

This is not the first case to reach appeal on the application of section 100 of the ERA 1996 to dismissals relating to Covid-19. In Rodgers v Leeds Laser Cutting Ltd [2022] EWCA Civ 1659 the Court of Appeal upheld an earlier EAT decision which confirmed an employee had not been automatically unfairly dismissed under section (1)(d) of the ERA 1996 for leaving his workplace and refusing to return at the start of the first national lockdown. In this case, the Court was clear that whilst a wider threat such as a pandemic may give rise to danger, for section 100 of the ERA 1996 to apply, the danger must arise at the workplace and the employee must believe they are subject to that danger in the workplace, rather than a general danger.

This case is a useful illustration of how the ET, and the EAT, will apply the scope of the protections afforded to employees under sections 44 and 100 of the ERA and a useful analysis of how they will look at an employer’s conduct in response to employees raising such concerns and whether their conduct constitutes a breach of trust and confidence, particularly with reference to Covid-19. The ET agreed that concerns regarding lack of social distancing, risk of using public transport and the failure to wear masks, in the context of a global pandemic, would justify the Claimant’s belief that the danger was serious and imminent.

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