Was it unfair to dismiss someone who needed to work from home?
In the case of Strydom v Bridge Facilities Engineers the Claimant, Mr Strydom (Mr S) had asked his MD to work from home for a limited period of 6 weeks to allow him time to be fully vaccinated from coronavirus. Mr S had made the request to shield his unwell son. Mr S was employed as a Contract Manager for the Company where his role was primarily office based with site visits to clients making up only 10% of his working day. Mr S’s offer of employment had allowed for him to work at home one day per week to care for his son who has severe learning difficulties and even cold and flu symptoms can cause his son to have seizures.
Mr S’s son was deemed clinically vulnerable by the NHS and accordingly Mr S asked to remain at home for 12 weeks to avoid as much face to face contact with others as possible. After the first lockdown it was agreed that Mr S could work from home but he was treated differently from other employees. He was missed off an email circular standing down the engineers as he was considered ‘out of sight, out of mind.’
Ms S considered that the Company did not consider that working from home as real work and had referred to his day working from home as his ‘day off.’ Mr S was subsequently placed on furlough and did not return to work until 31 August 2020. He returned to the office and was provided with a Covid risk assessment but remained worried about the risks posed to his son. As a result, he built a screen around his desk and asked colleagues to use a post tray to minimise the risks posed to his son with his working in the office. Mr S was concerned about the lack of social distancing and cleanliness in the office. As of January 2021, a new Covid variant emerged and Mr S became increasingly worried for his son. He sent texts to his managers expressing his concerns. The Company dismissed these and downplayed the risk of Covid infection.
As a result of the new variant, Mr S asked to work from home again until things became safer. The response to this request was negative. He was told that home-working negatively impacted the office. Mr S was also told that the Company could not sustain him working from home and it was suggested he consider ‘alternative options.’ Mr S was not clear what this meant and he was then told that he was being ‘released.’ This was at a time when the Government guidance was to support employees to work from home as much as possible.
The business expressed concern that Mr S working from home would create a greater administrative burden for the Company and expressed multiple reasons to decline his request. Mr S came up with a number of solutions to facilitate home-working and team engagement which were dismissed out of hand by the Company. Mr S requested a conversation to discuss his suggestions but this was ignored.
Some days later, Mr S was told that the MD was now planning to restructure and downsize the business and he could not defend someone being paid a full-time salary to work from home. A redundancy package was offered. This was the first Mr S had heard about redundancy: there had been no indication of any consultation. Days later Mr S was given notice due to redundancy and told that it was of no benefit for the Company to agree to the home-working request for the foreseeable future. Mr S was dismissed with three weeks’ notice and statutory redundancy pay.
Mr S appealed his unfair dismissal but was unsuccessful. He sought recourse from the law. An Employment Tribunal sitting in Watford reached the conclusion that his request to work from home had precipitated his dismissal and that the Company could not establish a fair reason for dismissal. The Company could not provide any specific explanation why Mr S could not reasonably work from home. Mr S’s claim for unfair dismissal succeeded.
It seems clear on the facts that the business could have accommodated Mr S working from home so he could protect his son, but it chose not to and failed to take into consideration any reasonable alternatives. It was perfectly feasible for Mr S to work from home, care for his son and provide effective service. The Company was simply closed-minded about considering alternative ways of working. The pandemic has changed the world of work forever. Companies who are not live to this culture change will undoubtedly face challenges in the new working environment.
This blog was written by Elizabeth McGlone, Partner at didlaw.
