Health and safety dismissal – fair or not?

The health and safety of individuals at work is protected in a number of ways, both under statute and the common law. Employers must protect the health and safety of employees and workers in accordance with the Health and Safety at Work etc. Act 1974.

Employees are also protected under s100 ERA from dismissal (if dismissed, the dismissal will be ‘automatically unfair’).

A recent case has come before the appeal court relating to a dismissal during the first national Covid-19 lockdown in 2020, when the claimant refused to attend work.  His reason was that he had vulnerable children who could become very ill if they caught Covid-19.  The employee was dismissed for his refusal to return and made an employment tribunal claim that his dismissal was automatically unfair because he had exercised his right not to return to the workplace in accordance with s100 ERA.

The tribunal dismissed the claim because although he had general concerns about Covid-19 they were not directly attributable to the workplace.  The employer’s workspace was large (described as the size of half of a small football pitch), which at the relevant time typically had five people working on the shop floor.

The employee had apparently not worn a facemask, had left his home during self-isolation, and worked in a pub during lockdown.  These facts did not support his assertion that there were circumstances of danger which he believed were serious and imminent, either at work or at large.

The employee has subsequently appealed, but the Employment Appeal Tribunal (EAT) has dismissed the appeal.  While accepting that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented them from returning to the workplace; on the facts of this case, the EAT agreed with the employment tribunal, stating that, even if the ET had been wrong about this, it had been entitled to find that the employee himself could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands.

Be aware that both an employer and individual have responsibility for health and safety in the workplace.  121 HR Solutions can provide guidance on 0800 9995 121.

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