Navigating the “new normal”: the COVID-19 workplace

4 March 2022

The past two years have brought a rush of new terms to the workplace. New entries to the Oxford English Dictionary during 2020 included “self-isolation”, “social distancing”, “elbow bump”, “WFH”, and, as a verb, “to Zoom”. In addition to grappling with furlough arrangements, employers have had to navigate increased concerns about workplace health and safety and the transformation in remote working. It remains unclear when the “new normal” will arrive, but in the meantime a number of decisions have provided useful examples of how tribunals may approach disputes arising from pandemic-related issues.

The reluctant returnee

A number of cases have dealt with employees refusing to return to the workplace due to concerns about catching coronavirus. Section 100(1)(d) of the ERA provides protection for the dismissed employee who can demonstrate that the dismissal was due to a refusal to return to the place of work “in circumstances of danger” which the employee reasonably believed to be “serious and imminent” and which the employee could not reasonably have been expected to avert.

As seen in Rodgers v Leeds Laser Cutting Ltd [2021] 1 WLUK 594, such circumstances must relate to a danger arising in the workplace itself, rather than a general concern about the risks of pandemic. The Claimant had refused to return to work after a period of self-isolation. His refusal was based on his concerns about infecting his vulnerable children. The Tribunal considered the particular circumstances of his workplace and the associated risk of infection. In this case, the Claimant was a laser operator, working in a “large warehouse-type space” with around four other people. A risk assessment had been carried out by the employer, “Covid secure” arrangements were in place and had been discussed with staff. The Tribunal determined that the Claimant’s decision to stay off work had not been appropriate, and was not linked directly to his working conditions, but to his general concerns about the virus. The Claimant had not taken steps to tell his employer about serious and imminent danger in his workplace. The s.100(1) protection did not apply, and his dismissal had been justified.

Rodgers provides an example of how such claims are likely to turn on the specific workplace environment and the importance of demonstrating proper consideration of COVID-19 health and safety risks.

The would-be home worker

In Accattatis v Fortuna Group (London) Ltd [2021] 4 WLUK 558, the Claimant was a Sales and Project Marketing Co-ordinator for a company which sold and distributed PPE. When the first lockdown began in March 2020, the Respondent informed its staff that working from home was not an option, and if they wished to self-isolate because of the pandemic, then they should take either paid or unpaid leave. The Respondent refused repeated requests from the Claimant to work from home or be furloughed, explaining that his job role required physical attendance and he would not be furloughed as the company needed him to continue working in light of the high demand for PPE. The Claimant was later dismissed.

The Tribunal agreed with the Respondent’s position that the Claimant could not have worked from home, as his role involved dealing with deliveries daily at the Respondent’s premises, against the backdrop of surge in demand for PPE. It refused the Claimant’s argument that s.100(1) ERA applied, on the basis that whilst the Claimant did have a reasonable belief in there being “serious and imminent” danger, remaining at home whilst demanding to be paid was not an appropriate step by the Claimant to protect himself from such danger, when the Claimant had the alternative of taking leave.

Accattatis, like Rodgers, demonstrates that general concerns about pandemic safety do not automatically translate into a basis for refusing to attend the workplace in person. Accattatis also indicates that even where the danger is a serious and imminent one, there may be a range of measures to enable the employee to avoid it (such as leave) and working from home will not be necessarily be appropriate.

The mask refuser

At the other end of the spectrum are claims relating to employees dismissed for failing to comply with COVID-19 precautions. In Kubilius v Kent Foods Ltd [2021] 1 WLUK 477, the Claimant lorry driver was dismissed after declining to wear a face mask in his lorry cabin, contrary to the repeated instructions of a client’s employee. The Claimant’s refusal was on the basis that there was no legal requirement for him to wear a mask and he was alone inside his cab. The client placed the Claimant on its list of banned drivers. The Tribunal held that the Claimant’s dismissal was reasonable, as the employer had been entitled to consider the importance of good relationships with its clients, the effect of the site ban, and the lack of available alternative roles for the Claimant given the client’s site ban. It noted, however, that another employer might reasonably have dealt with the misconduct with a warning, rather than dismissal.

Whilst the Tribunal clearly had some sympathy with the Claimant’s perhaps understandable initial scepticism on being required to wear mask within his cab, Kubilius makes clear that the Tribunal will not go behind a reasonable decision by an employer in such circumstances. The claim was not an assessment of the client’s mask instruction, but of the employer’s response in light of the Claimant’s repeated refusal to comply,  the client’s decision to ban him from site, and the Claimant’s insistence that he had done nothing wrong.

The vaccine hesitant employee

In Allette v Scarsdale Grange Nursing Home Ltd [2022] 1 WLUK 233, the Claimant care-assistant was dismissed after refusing to comply with the Nursing Home’s instruction to have a COVID-19 vaccine. C had doubts about the vaccine’s safety and argued that her religious beliefs prevented her from being vaccinated. The Tribunal dismissed the claim, holding that despite there being nothing in the contract of employment or the employer’s disciplinary policy regarding vaccination, the decision was a reasonable management instruction. The Tribunal took particular account of the COVID-10 outbreaks in nursing homes and the associated advice from national health bodies. C’s beliefs about the vaccine were, the Tribunal held, without any medical basis and relied on “unidentified Internet sources” and conspiracy beliefs. The interference with C’s Article 8 rights was necessary and proportionate, and based on the legitimate aim of protecting residents. In addition, the employer’s insurers had taken the decision not to provide public liability insurance for COVID-19 related risks, raising the possibility of liability if unvaccinated staff passed the virus on. C’s refusal to comply with the reasonable instruction was unreasonable and amounted to gross misconduct.

Allette presents as a relatively clear cut set of facts, and it will be interesting to see if more complex issues arise in future claims. For instance, an employee might dispute whether vaccination was necessary for their particular job role, especially in a sector where the risk to the vulnerable was not as pronounced as in a care home setting.


David Messling

Call 2017

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