Does an employer’s refusal to let an employee work from home or be furloughed during the COVID pandemic mean that the dismissal is unfair?
COVID tribunal cases have started to trickle in: it was always a case of ‘seeing what happens when the first COVID related claims make it to court’.
This is a case brought under the legislation of s100e of the Employment Rights Act 1996, which allows claims by employees who say they had concerns for their health and safety, resulting in their employment being terminated.
For brevity, let’s say an employee, Mr A, was employed in a business and classed as a keyworker and told ‘we respect any desire by individual employees to refrain from work at this difficult time so any requests for immediate paid or unpaid leave will be approved’.
Mr A took the bus to work but developed COVID, and after recovering was reluctant to return to work so asked to work from home for the foreseeable future or be placed on furlough. The company declined as he was a keyworker providing PPE at a critical time.
Friction had always existed, but his persistent refusal to attend work meant his employment was terminated citing ‘a general ongoing failure to comply with our company policies’. He brought a claim of automatic unfair dismissal. It was accepted by the tribunal that the employee felt there was a genuine danger of contracting the virus but had not raised his concerns.
In the tribunal’s opinion, demanding to work from home/be furloughed was not classed as an ‘appropriate step’. They found he was seeking to protect his financial position by benefiting from the government job retention scheme rather than protecting his health.
So, Mr A was dismissed for being a challenging employee who had sent impertinent emails, demanding a change to his working arrangement and alleged that the employer had purposely taken action when it did to prevent him from achieving two years’ service, not because of his reluctance to use public transport or his general concerns over COVID.
His claim was dismissed – as a ‘first-round finding’ this (and cases like it) may be appealed so have not (yet) set a legal standard for everyone to follow. The decision was made using COVID guidance that was relevant at the time which may mean a case with similar facts brought at a later date may result in a different finding.
Employment law is complex – if you need help navigating it, we’re here to help. Contact Jennie Jahina on 0800 0886004
