Chef’s dismissal unfair after he raised COVID-19 concerns at work
Shut up and get on with it.
That was what an employment tribunal heard an employer told a staff member concerned about COVID-19 at work. In particular, the employee was worried if he caught the virus, he’d pass it onto a family member who had been shielding.
Now, so far, there's been a low success rate amongst employees in tribunal cases relating to the pandemic; however, here — Gibson v Lothian Leisure — a restaurant chef successfully persuaded a tribunal that his concerns about workplace safety meant his subsequent dismissal was automatically unfair.
The company did not provide any PPE for staff and, as the claimant Mr Gibson argued, had no intention of implementing measures to create a COVID-secure working environment.
The claimant’s hesitancy to return to work didn't go down well.
Not only, as I’ve mentioned, was he told to “shut up and get on with it” but in May 2020 he was dismissed by text. The text message suggested a possible redundancy situation. Without any discussion, it said that the business was changing its format and would be running with a smaller team after the lockdown.
Mr Gibson argued he had been automatically unfairly dismissed/selected for redundancy because he had raised concerns about the safety of his workplace. The employment tribunal agreed.
To succeed in a claim like this, employees generally have to establish a reasonable belief (both objectively and subjectively) that COVID-19 has created serious and imminent circumstances of danger.
At the start of the pandemic, this may seem like a relatively low barrier to jump for employees.
But, will that bar be raised now we’re over a year further along and our vaccination programme is continuing apace?
I don’t think we’re out of the woods yet.
With infection levels being what they are, some people may understandably still be worried, even if they have been vaccinated, and while working from home restrictions have eased, employers should bear in mind that they have a duty to identify and mitigate health and safety risks.
For businesses, these mitigation measures could include continuing to enforce social distancing rules, deep cleaning premises and putting in place systems allowing clean air to circulate.
Bear in mind too employees have considerable protection against dismissal arising from circumstances where they reasonably consider there’s this serious and imminent threat of danger.
For example, they don’t have to have worked for that employer for a minimum period of time — and any damages award in their favour is unlimited.
It makes sense then that when it comes to doing the right thing by their colleagues, clients and their business itself, employers should ensure their workplaces are as COVID-secure as they reasonably can be.
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