The First Covid Tribunal Case Outcomes

Case 1

In a case titled Rodgers v Leeds Laser Cutting Limited Mr Rodgers was employed as a laser cutter in a warehouse.  The employer put measures in place to try and keep people working as normal after the first lockdown was announced, this included completing a risk assessment and setting out measures for social distancing, wiping down work areas, staggering lunches and breaks, educating employees about handwashing and social distancing and consideration that the working space was quite large and spacious and there was a small number of employees (5).  In late March Mr Rodgers text his manager saying he had no alternative but to stay off work because he had a child with a high risk condition and a young baby.  He obtained a self-isolation note for a week.  The company dismissed him in April 20 for not coming to work.  Mr Rodgers who had less than 2 years qualifying service claimed automatic unfair dismissal under sections 100(1)(d) and (e) Employments Rights Act 1996 which both have no minimum qualifying period.  You can read the full outcome here.

In summary Mr Rodgers was not successful in his claim.  The tribunal found that with the measures the employer put in place having completed their risk assessment and followed all government guidance, the space available to work in and the small number of employees in the workplace that the employee could not have reasonably believed he was in serious and imminent danger, this was further evidence by the employee being known to have driven a friend to hospital during the period he was told to self-isolate breaking his quarantine and increasing his level of risk.  It was further noted that the text message sent to the line manager made no reference to having health and safety concerns about the workplace and Mr Rodgers did not communicate his concerns about the workplace to Leeds Laser Cutting Ltd.  This meant they couldn’t have known why he was absenting himself from work and they had no opportunity to address his concerns.  The tribunal found Mr Rodgers could have followed the measures the employer put in place, he could have reasonably been expected to avert danger and the tribunal questioned the need for him to isolate himself entirely given it was possible to self-isolate at work.  Every case is dealt with on its own merits, but this does show some hope that if an employer follows the covid guidance and tries to maintain a covid secure workplace then the risks of a claim of this kind may be minimised.

Case 2

In one of the first pandemic tribunals called Deimantas Kubilius v Kent Foods Ltd (read the full judgement here) the employee’s claim for unfair dismissal failed because the tribunal ruled that the employer was within it’s right to dismiss the employee, a truck driver, for refusing to wear a face mask when making a delivery to a client site (Tate & Lyle).  Mr Kubilius was making a delivery on behalf of Kent Foods to Tate & Lyle but when he arrived, he refused to wear his face mask when in the cab of his truck.  He claimed the cab of the truck was his home and asking him to wear a mask infringed his human rights.  A number of Tate & Lyle employees tried to reason with the employee and asked him to keep his mask on even when he was in his cab but he refused.  Tate & Lyle had set rules to make their workplace covid secure and they expected visitors to follow those rules when on site.  Mr Kubilius was accepting of wearing a mask if he got out of his cab but not while he was inside.  It was acknowledged by Tate & Lyle staff that even when in his cab Mr Kubilius had his driver’s window open and was talking to others outside his cab standing on the ground, they were concerned that he would be sharing droplets over others.  Tate & Lyle believed what they were asking was reasonable for the protection of others in the circumstances.  Kent Foods received a complaint from their client Tate & Lyle and Mr Kubilius was banned from the site, Kent Foods dismissed the employee.

Again, an outcome that provides some hope for other employers that may find themselves in this type of situation.

We will of course keep you posted as more cases work their way through the system, it is anticipated there will be many cases like these, but of course what tribunals have to consider is the reasonableness of an employer’s and an employee’s actions in the situations they have found themselves in.  Tribunals consider the actions taken on a ‘band of reasonable responses’ and aren’t expected to substitute their own view over and above the employers, but simply to decide whether the actions were reasonable.  Employers have found themselves with much greater responsibilities to provide safe working practices and workspaces in the context of an evolving pandemic , something we have never seen before to this extreme and haven’t had all the answers to making it hard to do.

If you would like to discuss any issues you are having with employees around returning to the workplace or you simply want to discuss your return to work strategies, then get in touch hello@metrohr.co.uk

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