Section 100 Employment Rights Act 1996 makes automatically unfair (and therefore free of the two years’ service requirement) the dismissal of an employee whose employment is terminated because:
'where there [is] no representative or safety committee, he brought to his employer’s attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety' (section 100(1)(c)); or
'in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he left or proposed to leave or refused to return to his workplace' (section 100(1)(d).
The claimant, Preen, worked as an air conditioning and refrigeration engineer. His role involved providing emergency cover and routine servicing to both domestic and corporate customers (such as hospitals and the food industry).
The facts leading to this case arose at the start of the pandemic, in March 2020, and the announcement of the first national lockdown, when travel to work was only allowed where that work could not be done from home and was 'absolutely necessary'.
Following the Prime Minister's announcement of the first national lockdown, Preen was told that he would be required to continue to attend work, but that meeting socially would be prohibited. Preen was unhappy with this situation, as he felt they were under a duty to do as instructed by the government. He therefore told his manager that he would be staying home, and only work where it was urgent or essential. At the time, he was told there were “no issues” with that, via text message.
Following up a few days later, Preen’s manager texted him to inform him that he was being dismissed by reason of redundancy, due to the fact he was refusing to work. At this point, he had around one year’s service with the business.
Preen raised a claim that this was a case of unfair dismissal for raising health and safety issues and/or because he had made a public interest disclosure (whistleblowing).
EMPLOYMENT TRIBUNAL (ET)
It was held that Mr Preen had alerted his employer about his concerns around working during lockdown, and that he reasonably believed that continuing to do non-essential work would put himself and others at risk. The ET made it clear that these were the sort of scenarios that section 100(1)(c) aimed to prevent, enabling employees to raise health and safety concerns without fear of reprisals, and that this was the principal reason for dismissal. As such, the dismissal was automatically unfair for one of the reasons, namely that employee should “…be able to raise genuine and reasonably held concerns about health and safety with their employer without the fear of being dismissed as a result.”.
However, it went on to find that, in other areas, the dismissal was not unfair under section 100(1)(d). To have been successful in this part of the claim, Preen would have had to demonstrate that he refused to come into work because there were dangerous circumstances which he reasonably believed to be serious and imminent, and not just simply potentially harmful to health and safety, which was a higher threshold that he was unable to meet. It also found that no whistleblowing had taken place.
Whilst the ET acknowledged that Covid is dangerous, it did not find that Preen reasonably believed that by attending work he or others would be in serious and imminent circumstances of danger. Covid doesn't automatically create circumstances of serious and imminent danger. ‘Something more' is needed for this to be the case, such as unsafe working practices or medical vulnerability. In this case, sensible precautions had been implemented including providing masks, hand sanitiser and a COVID health and safety procedure. It was also important to note that Preen was willing to do emergency work, which was contrary to his position that the workplace was so unsafe no work could be conducted at all.
Note for employers
It is clear from this case that the better claim in these circumstances is under section 100(1)(c), i.e. that the employee had brought an issue to their employer's attention, rather than proving that their workplace poses a 'serious and imminent danger'. However, this can only be relied upon if the workplace doesn’t have a health and safety representative or safety committee (as was the case for the respondant).
Organisations should consult with their workforce about health and safety issues and explain what steps are being taken to protect against Covid. In this case, discussions did take place before the first lockdown was imposed and procedures were put in place to protect staff and those they came into contact with.
What should be taken from this case is the importance of talking through such matters with employees, and clearly explaining exactly what they are being required to do, why, and what measures are in place for their safety. In this matter, there were no attempts to talk through Mr Preen's concerns following his text message and, almost immediately, he was dismissed. Had his manager instead taken the time to talk to him, and explain what he was being required to do, it’s unlikely the matter would have carried on as it did, and should he later have refused to work a fair dismissal would have been much more likely.