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Office based working – health and safety

As of 19 July 2021, the Government is no longer asking people to work from home.

It is not anticipated that all employees will immediately return to the workplace, rather it is likely that there will be a more gradual shift towards office based working.

Employers who are planning a return to the office will need to ensure sufficient health and safety measures are in place to manage the risk of the virus. Employment claims arising from the pandemic have started to trickle through the tribunal system and, unsurprisingly, a number relate to health and safety. We explore two such cases below. Although these are first instance decisions and are therefore not binding on other tribunals, they give a useful indication of how the tribunals will deal with such claims.

Francesco Accattatis v Fortuna Group (London Limited)

Mr Accattatis (“A”) was employed by Fortuna Group. Fortuna is a company which sells and distributes PPE. For reasons which require no explanation, Fortuna was extremely busy from March 2020.

Following the announcement of the first national lockdown in March 2020, A made several requests to work from home or be furloughed. A said he was uncomfortable travelling to work on public transport (A had to get the bus into work) and going into the office during lockdown. Fortuna’s response was that the nature of A’s role meant that he could not work from home, for example part of his role was dealing with daily deliveries, and it was not appropriate to use the furlough scheme as the business was still trading and had work for A to do.

A was dismissed with immediate effect on 21 April 2020. A did not have sufficient qualifying service (2 years) to claim ordinary unfair dismissal so he pursued a claim of automatic unfair dismissal for health and safety reasons under s. 100 of the Employment Rights Act 1996 (ERA). Under s.100 of the ERA, a dismissal will be automatically unfair if the reason or principle reason for the dismissal was that the employee took or proposed to take steps to protect themselves or others from a danger which they reasonably believed was serious and imminent.

The Tribunal found that A subjectively believed that there was a serious and imminent danger posed by COVID-19. However, A’s claim failed on the basis that the steps he proposed (working from home or furlough) were not appropriate. In addition, the Tribunal found that Fortuna had proposed legitimate alternative options to alleviate the perceived danger such as unpaid leave which A rejected as he said he had bills to pay.

Read the full judgment here.

Gibson v Lothian Leisure

Mr Gibson (G) also lacked the necessary two years’ service to bring an ordinary unfair dismissal claim and therefore brought a claim under s.100 ERA. G was employed by Lothian Leisure as a restaurant chef. Unlike A above, G was furloughed in March 2020.

G lives with his father, who was shielding during lockdown due to numerous medical conditions. The restaurant was preparing to re-open towards the end of the first lockdown and G was asked to come into work. G raised his concerns with Lothian that his return to work meant his father may contract COVID-19, particularly as Lothian did not plan on providing its employees with PPE or putting in place measures to ensure the workplace was COVID secure. After raising these concerns, G’s employment was terminated with immediate effect via text message.

As with the case above, the Tribunal concluded that G subjectively believed there was a serious and imminent danger, that being the growing prevalence of the virus and the potential significant harm to G’s father were he to catch the virus. The Tribunal considered that by raising the issue of PPE with Lothian, G had taken an appropriate step to protect his father from that danger. His claim therefore succeeded.

Read full judgment here.

Comment

It is important to note that a tribunal will consider each case on its own facts and these judgments are fact specific. However, these cases indicate that the bar is relatively low for employees to show they believed there was a “serious and imminent danger”. These cases were based on the circumstances of the pandemic as they were last year. The circumstances now are very different with the swift roll-out of the vaccination program and increased knowledge of the virus. It may therefore be more challenging for employees now to show a belief in an imminent and serious danger arising from the pandemic.

In any event, it is clear from these cases that an employee must do more than establish a risk, they must also show that the risk still exists despite what their employer does to alleviate that risk. G succeeded in his claim as Lothian did not discuss his concerns with him or put in place additional safety measures. A failed in this element of his claim as Fortuna proposed suitable alternative steps which A rejected.

Tips for employers? Employers should discuss an employee’s specific concerns, consider what further steps it can take to alleviate those concerns and implement any appropriate additional safety measures identified.

If you have any questions or would like to discuss matters arising from this article please contact Paula Squire.

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