An employee dismissed for gross misconduct after refusing to return to his employer’s office during the Covid-19 pandemic after a period of working from home has been successful in claims for unfair and wrongful dismissal.
The facts
The Claimant began employment with the Respondent, a financial services company, in June 2018. During his employment, the Claimant performed well, earning a promotion from Compliance Assistant to Compliance Analyst and an associated pay raise. The Claimant’s contractual place of work was the Respondent’s Henley office. When the Covid-19 pandemic emerged in March 2020, the Claimant was living in a one-bedroom flat with his girlfriend, who as a result of a heart condition and asthma, was classified as ‘clinically vulnerable’ under government guidelines.
Given the potential vulnerability of his girlfriend to Covid-19, the Claimant had a meeting with his line manager in which he was ‘visibly distressed’. It was agreed that the Claimant could begin working from home. During the period in which the Claimant worked from home, there were no performance issues or concerns and it was not disputed by the Respondent that the Claimant did so successfully. Indeed, a board meeting held by the Respondent in April 2020 recorded that employees broadly were working from home successfully. Despite this, and despite the Claimant’s line manager stating that he had full trust in the Claimant to continue working from home, the Claimant was asked to return to work in July 2020. The Tribunal noted that this seemed to stem from the Respondent’s concern that allowing the Claimant to continue working from home may ‘open the door to a flood of requests from other employees to do the same.’
When the Claimant refused to return to the office, his system access was disabled and he was placed on unpaid leave. The Claimant was dismissed for gross misconduct in July 2020.
The Tribunal’s decision
The Tribunal found that the Claimant’s dismissal had been contrary to s.100(1)(d) and (e) of the Employment Rights Act 1996, and therefore he had been automatically unfairly dismissed for gross misconduct. These provisions of the ERA states that a dismissal will be automatically unfair when implemented because:
(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.
In reaching this conclusion, the Tribunal considered that Covid-19 had been classified as a serious and imminent threat to public health. Whilst the Claimant was less likely to become seriously unwell, due to his age and lack of underlying health conditions, Covid nonetheless posed a risk to his health. Additionally, the Claimant’s girlfriend would be at an increased risk of experiencing the most adverse effects should he transmit the virus to her. The Tribunal went on to state that even if they had not found the Claimant to have been automatically dismissed for gross misconduct, the requirements for an ordinary unfair dismissal under s.98(4) ERA were made out: the Respondent had failed to show a potentially fair reason for dismissal and both the sanction and procedures followed fell outside the range of reasonable responses open to a reasonable employer.
Impact of this decision
With the development of the Covid vaccine and the gradual return to work now being implemented by many employers in the UK, this decision may already be seen as a bit of a time capsule – a throwback to a time when we were all only just acquainting ourselves with Zoom and returning to offices seemed to be years away. However, there are wider lessons to take away from this case, perhaps the most important being the right of employees not to be dismissed for removing themselves in circumstances of serious and imminent danger in the workplace. Given that the statute also empowers the employee to protect others from danger, it may become an important bargaining chip for employees who are either vulnerable themselves or are in contact with vulnerable loved ones, as they state their case for continuing to work from home post-Covid.
This blog was written by Michael Green, paralegal at didlaw.
