The pandemic has been challenging for both employers and employees. It has also led to employment tribunal claims being issued. This will likely continue for some time and claims may rise when the furlough scheme ends. Case law can take time to be reported and even longer to filter through to policies and practice.

In our latest round-up of key employment law cases, James Edmonds, an Associate in the Employment Law department at WBW Solicitors in Newton Abbot, looks at recent employment cases related to COVID-19.

Walking out on a job due to perceived Covid risk

In Rodgers v Leeds Laser Cutting Ltd [2020], the claimant, Mr Rodgers, was dismissed after walking out of his job because he was worried about infecting his clinically vulnerable children. Mr Rodgers claimed he was automatically unfairly dismissed for exercising his right to leave the workplace where he reasonably believed that there was a serious and imminent danger.

The employment tribunal disagreed, pointing to inconsistencies in Mr Rodgers’ behaviour as he had driven a friend to hospital the day after leaving work and had worked in a pub later during the pandemic. The tribunal found it was inappropriate to walk out without raising concerns with his manager first, and that the employer had implemented the recommended Covid-secure measures at the time.

This case illustrates why employers need to remember that workers and employees have protection against detriment and dismissal for leaving work (or refusing to return to work) when they have a reasonable belief that attending work would put them in serious and imminent danger. An employee who asserts their right to safety or raises concerns about health and safety will also have similar protection. Employers should consider these employment rights carefully when a worker or employee raises concerns about health and safety, and seek legal advice if necessary.

Sacked for refusing to wear a face mask

In Kubilius v Kent Foods Ltd [2020], Mr Kubilius refused to wear a face mask onsite when asked to by a client of his employer. The client banned him from their site. Mr Kubilius was dismissed from his job as a lorry driver for misconduct. The tribunal found the dismissal was fair, taking into account the employer’s need to keep good relations with its client.

Government guidance no longer requires face coverings to be worn in workplaces but requiring employees to wear face covering could be a reasonable management instruction if it is done in accordance with government guidance, supported by risk assessments, and face coverings are provided. However, some employees may have a good reason not to wear a mask so objections should also be considered on a case-by-case basis.

Mandatory vaccinations

In Vavřička and others v the Czech Republic [2021], the European Court of Human Rights found that it was proportionate and not a breach of human rights to enforce penalties against parents who failed to vaccinate their children under a mandatory scheme. However, the scheme related to long-established child vaccines which means that a different outcome could be reached in relation to a ‘no jab, no job’ policy involving relatively new Covid-19 vaccines.

Currently, only regulated care homes will be able to legally require workers to be vaccinated from 11 November 2021. Employers have instead been advised to only encourage and support their staff to be vaccinated without making vaccination a requirement. Employers should therefore seek specific legal advice before requiring employees to be vaccinated.

Failure to furlough made dismissal unfair

In Mhindurwa v Lovingangels, the Employment Tribunal found that making an employee redundant when it was possible to furlough was unfair dismissal. The claimant, who was a care assistant, was looking after an elderly woman before she moved into a care home, thus making her role prime facie redundant. The employer refused to furlough her, saying that that there was no work from her. The judge however, said that the employer should have considered whether the employee should be furloughed to avoid being dismissed on the ground of redundancy.

This case highlights the importance of exploring alternatives to dismissal when an employee has unfair dismissal protection. These alternatives would include furlough if the reason for the dismissal is redundancy.

How we can help

Employment law is a complex and rapidly moving area. We can help your business avoid the expense and disruption of tribunal claims. Please contact James Edmonds in the employment team on 01626 202329 or email jamesedmonds@wbw.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.