Employment Tribunal rulings on COVID-19 issues

Darllenwch y dudalen hon yn Gymraeg

The Employment Tribunal has been dealing with a number of Covid-19 related claims recently. Here’s a round-up of some recent rulings.

In Prosser v Community Gateway Association Ltd ET/2413672/2020, the Tribunal considered whether an employer had discriminated against a pregnant worker by sending her home during the early stages of the pandemic and delaying her return to work until adequate social distancing measures were put in place. The Tribunal dismissed her discrimination and victimisation claims, noting that these were not acts of unfavourable treatment because of her pregnancy but were steps taken to protect the employee in compliance with available public health advice and relevant Covid regulations. This decision will have ongoing relevance for employers dealing with employees returning to the workplace and considering measures to reduce risks for pregnant employees.

The case of Ham v Esl Bbsw Ltd ET/1601260/2020, concerned the dismissal of an employee from his cleaning service job when he refused to deliver equipment to his self-isolating manager’s home, who had Covid symptoms. Mr Ham had suggested that he instead delivered the equipment to another location, where it could be stored securely. In his internal appeal against his dismissal, Mr Ham explained that he had been concerned for his and his family’s health. The Tribunal concluded that his dismissal was for the principal reason that he had raised health and safety concerns, making it automatically unfair.

We have also started to see the first Employment Tribunal decisions in relation to the impact of the Coronavirus Job Retention Scheme (CJRS) on the ability to dismiss fairly by reason of redundancy. It is clear that whether dismissals for redundancy will be deemed to be unfair because the employer did not utilise the CJRS will depend upon the facts in each case. In the case of Mhindurwa v Lovingangels Care Ltd ET/3311636/2020 the Tribunal found that a dismissal by reason of redundancy was unfair where the employer refused to consider furlough as an alternative to redundancy. It considered a reasonable employer would have considered furlough as a means to avoid the redundancy, that was after all the purpose of the CJRS. However, in Handley v Tatenhill Aviation Ltd ET/2603087/2020 the Tribunal accepted that the employer needed to cut costs irrespective of the CJRS and wanted to use the scheme to cover some of the costs of the redundancy. In that instance the dismissal was held to be fair. It seems therefore that a reasonable explanation as to why the CJRS was not utilised may be sufficient to ensure that a dismissal is fair in the circumstances.

These cases are examples of the variety of claims that are currently working their way through the Employment Tribunal system in relation to Covid related decisions made by employers. They emphasise the need for employers to consider matters carefully and the potential implications before taking action in relation to employees in Covid related situations, particularly those involving health and safety considerations.

For further advice on these cases or any employment law matters contact the Geldards’ Employment Team who are always available to help.