Refusal to Attend Work Due to Fears About Covid

Employers and employment lawyers have for the last two years been grappling with novel and unprecedented issues arising from the coronavirus pandemic, and Claimants have been bringing a variety of claims relating to Covid issues. These cases continue to progress through the tribunal system, and judicial decisions relating to coronavirus continue to be issued.

The employment tribunal in the recent case of Quelch v Courtiers Support Services Ltd considered a claim for unfair dismissal from an employee who was dismissed for refusing to come in to work, due to his fears about Covid-19.

At the start of the pandemic, employees of the Respondent had been sent to work from home, but over subsequent months, the company looked to have all staff return to the office in a number of phases. The employer was concerned that continued home working would mean a loss of “social capital”.

The Claimant was concerned about this as his girlfriend was medically vulnerable to Covid and he was unhappy about returning to work in proximity to colleagues with school-age children who could potentially pass the virus to him, and thereby endanger his partner.

Despite the support of his manager, who believed the Claimant worked well from home, was trustworthy, and should be supported to continue home working, the employer insisted that the Claimant return to the workplace, explaining to him the various steps they had taken to safeguard health and safety. They then dismissed him in July 2020 when he refused to return to the office. An unfair dismissal claim followed.    

The employment tribunal found that the dismissal was unfair on normal principles – the employer did not have a proper reason for dismissal. The employer argued both misconduct and “some other substantial reason”, however, both were rejected by the tribunal, finding the employer could not reasonably have categorised this as misconduct. In any case it was unreasonable to dismiss in these circumstances.  

Further, the dismissal was automatically unfair (and so would have been unfair even if the employee had not had two years’ service). The employee refused to attend work in circumstances where he had a genuine and reasonable fear that the workplace posed a serious and imminent threat to health and safety.  He was dismissed for that refusal and so the dismissal was automatically unfair (without the need to consider the procedure followed by the employer). There would have been no upper limit on the compensation that could have been awarded if the Claimant had suffered substantial financial loss (which in fact he did not).

This decision is consistent with our advice to clients throughout the pandemic – that dismissal for refusal to come into the office was fraught with difficulty, especially if the employee or a family member is clinically vulnerable. 

Given the way in which the pandemic has developed since then, and the success of the vaccine programme, it is less likely that issues like these will arise, given the reduced risks to health and safety arising from attending the office. However, we do continue to be contacted by clients seeking advice on this issue, and it is important to note the consequences of getting it wrong. Employers should always tread very carefully if an employee is raising concerns about health and safety. 

Advice on this topic is available from our expert team of employment lawyers.

This update contains general information only and does not constitute legal or other professional advice.

Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012

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