SAIF Golden Charter

COVID-19 and the law

There have been a couple of recent tribunal cases that have found for the employer when it came to employees claiming unfair dismissal following issues with COVID arrangements. So, what happened and why?

Case #1: Mask-refusing driver ‘fairly dismissed’

The vehicle driver in this case was sacked after refusing to wear a facemask inside his cab on a client’s site. Following a tribunal hearing, the judge found that the employee had been fairly dismissed. The case is believed to be the first time a tribunal has ruled on facemask refusal.

The employee had refused to wear a face covering when asked, prompting a ban from the site he was delivering to for breaching their health and safety rules.

The judge said that the employee had failed to comply with his employer’s requirements, which stipulated that ‘customer instruction regarding PPE requirements must be followed’. It was therefore reasonable for his employer to dismiss him for misconduct.

The tribunal was told that while he did wear a mask while outside his vehicle, he refused to wear one inside the cab when two managers asked him to do so. It was pointed out to him that ‘with no mask on, all the droplets from your mouth as you speak would land on people’s faces due to your elevated position up in the cab’. But the employee argued that the cab was his own area and that wearing a face covering was not a legal requirement and that he was not aware of the need to wear a mask inside his cab until he was approached by the managers.

Most significant to the judgement was the employee’s refusal to comply with a health and safety instruction and lack of remorse in standing by his actions. His dismissal fell within the range of reasonable responses to his conduct by his employer and furthermore the employee’s continued insistence that he had done nothing wrong caused his employer to lose confidence in his future conduct.

Case #2: Claim for unfair dismissal over COVID concerns

The employee brought a claim of unfair dismissal which came about because he refused to go into work over safety concerns and COVID-19.

The employee’s workplace was a large, warehouse-type space with low numbers working on the shop floor. Following the announcement of the first national lockdown, the employer confirmed to staff that the business would stay open and asked staff to work as normally as possible and told them that measures were being put in place to allow them to continue working safely.

An external risk assessment was carried out which identified the level of risk for various scenarios and made recommendations for actions to reduce risk including social distancing, hand hygiene, wiping down surfaces and staggering start, finish and break times.

The employee developed a cough while at work and stayed away as would usually be required. He then sent a text to his employer

to say due to his children being at high risk he would be staying off work until lockdown eased. However, the employee refused to return to work when lockdown eased and the employer dismissed him.

The judge found for the employer and dismissed the claim for unfair dismissal as the employee confirmed to the employer and tribunal that all the measures put in place would have made the business as safe as possible from infection, potentially safer than the community he lived in, but not safer than his own home. He stated that he was not sure that any measures would make him feel safe enough to return to work. He also gave contradictory statements regarding not leaving the house, by admitting to dropping his friend at a hospital and working in a pub.

The judge concluded that the claimant’s decision to stay off work was not directly linked to his working conditions and that his concerns about the virus were general ones which were not directly attributable to the workplace, but rather his personal feelings on how to stay safe. The risk mitigation measures taken by the employer were seen as reasonable in the circumstances.

Conclusions

Don’t get me wrong, I’m not telling you to go ahead and start coming down hard on employees. As with anything HR and safety related, you need to be doing what is reasonable. However, it’s natural to worry about doing the right thing, so these examples offer hope that if cases arise there is evidence that events can be judged fairly.

Continue to do as much as possible to keep your employees, visitors and anyone else associated with your work safe, and those in authority will see this and act accordingly. It’s fair to say that where it goes wrong for an employer is when they haven’t done what they should or could have.

If you still want support, help is at hand! As a member of SAIF you can talk to a safety professional at Safety for Business by calling 08456 344 164. You are also entitled to a discount on our fees when we help you with your health and safety needs. Safety for Business can visit you to see how you are doing when it comes to compliance. This is free of charge apart from travel costs.