I’ve been dismissed because I took steps to avoid Covid - what are my rights?
Content / trigger warning
As we all know, Covid-19 infection has potentially serious short and long-term consequences for our health. As a result, some people may feel unhappy, or unable, to put themselves in situations they did before at work. If you refuse to do something at work because you believe it puts your health at risk from Covid and then you’re dismissed, what are your rights?
When might you feel unsafe?
In a post Covid world, it’s completely understandable that you may feel unsafe at work if:
- you haven’t been given the right PPE (personal protective equipment)
- there isn’t enough space in the workplace to allow for social distancing
- your role involves you having contact with lots of people
- you, or a family member, are considered vulnerable to serious infection
- your employer hasn’t provided deep cleaning facilities or
- you’re being asked to share equipment.
Is it unlawful to dismiss me because I took steps to avoid Covid?
In the UK, section 100 of the Employment Rights Act 1996 (section 100) protects employees from losing their job because they’ve taken steps to protect themselves or others in certain health and safety situations.
It’s ‘automatically unfair’ to dismiss you because you:
- refused to return to work because of a danger you believed to be serious and imminent that you couldn’t reasonably avert or
- took appropriate steps to protect yourself or others from danger you reasonably believed to be serious and imminent. What’s ‘appropriate’ will depend on the circumstances.
Real examples of people being dismissed because they were avoiding Covid
The application of section 100 to Covid situations has now been heard in a small number of Employment Tribunals. Here’s what we can learn from some of these, so far.
A case where the employee lost because the employer followed safety precautions
Mrs Abraham (a laser operator) refused to return to work until after lockdown because she was scared of infecting her young children with Covid, one of whom had a serious medical condition. Mrs Abraham was dismissed; she raised a claim for automatic unfair dismissal under section 100.
The Tribunal didn’t agree with Mrs Abraham. They weren’t persuaded that she reasonably thought the workplace presented a serious and imminent danger. This was, in part, because she had breached government self-isolation guidance.
The Tribunal also noted that her employer had implemented the safety precautions recommended by the government. The workplace was large with few employees, so social distancing was easily achieved.
At no point did Mrs Abraham suggest what her employer could do to make her more comfortable. She just said she didn’t want to return to work until after the national lockdown had ended. According to the Tribunal, this meant Mrs Abraham believed the serious and imminent danger was everywhere rather than in the workplace.
Appeal to the Employment Appeal Tribunal (‘EAT’)
Mrs Abraham appealed the decision to the EAT. She argued that the Tribunal was wrong to say that because her belief related to a danger in the world at large, she could not meet the test for believing that her workplace was specifically dangerous.
However, Mrs Abraham lost her appeal. The EAT found that Mrs Abraham did not reasonably believe that there were circumstances of danger that were serious and imminent, either at work or at large, that prevented her returning to her place of work. They listed a number of factors to demonstrate this, such as the fact that her employer had implemented safety precautions and the fact she herself had worked in a pub during the pandemic and given a friend a lift whilst self-isolating. They also found that even if there had been a sufficient danger, Mrs Abraham could have reasonably been expected to take steps to deal with those, such as social distancing and hand-washing.
Finally, an interesting point around this case was that the EAT did accept that, depending on the circumstances, a danger outside of work could be enough to meet the test to protect against automatic unfair dismissal.
Appeal to the Court of Appeal
Mrs Abraham appealed her case to the Court of Appeal, in what was the first case to reach the Court of Appeal in relation to the application of section 100 to dismissals related to the Covid pandemic.
The main point that Mrs Abraham made in her appeal was that the original Employment Tribunal Judge’s reasoning amounted to saying that the dangers, to fall under section 100, had to be ones that only arose in the workplace. The Court of Appeal disagreed that this was what the Employment Tribunal Judge’s reasoning meant. The danger did not need to be one that only arose in the workplace - the Judge had simply meant that Mrs Abraham did not feel seriously at risk in the workplace.
A case where the employee lost because working from home wasn’t realistic
Mr Sims worked for a company which sold and distributed PPE. He didn’t want to commute or travel to the office on public transport as he was scared of getting Covid and he didn’t have a car to get to work.
Mr Sims asked to work from home. Given the nature of his job, the Tribunal accepted that wasn’t possible. He asked to be placed on furlough but that wasn’t an option either as the company was still trading and his job was still viable, with no reduction to hours. The company said Mr Sims could stay at home on unpaid leave, or use his holiday entitlement, but Mr Sims rejected that offer. He was dismissed by his employer and brought a case for automatic unfair dismissal.
Mr Sims' argument was unsuccessful. The Tribunal was persuaded that Mr Sims believed he was in serious and imminent danger. However, the demands for furlough or working from home were, in the circumstances, not appropriate steps.
A case where the employee won because the employer didn’t provide PPE
Mr Dawson was a chef. He was placed on furlough when the first national lockdown began. His employer then asked him to come into work to help out. Mr Dawson was worried about contracting Covid, in particular because his father was considered vulnerable.
Mr Dawson raised concerns about the lack of PPE and protective measures which his employer had put in place. His employer’s response was to “get on with it”. Mr Dawson was later dismissed via a text message which said the business would be operating with a smaller team. He brought a claim for automatic unfair dismissal.
The Tribunal agreed with Mr Dawson. There was a danger because of the growing prevalence of infections by the Covid virus, and the potential significant harm, if Mr Dawson’s father should contract Covid. Mr Dawson also reasonably believed the danger to be serious and imminent - that’s why he raised the concerns regarding PPE. Raising that issue did amount to an appropriate step to protect his father from danger.
What can we learn from these cases?
The latter two of these examples are “first instance” cases, which means they aren’t binding on future Tribunals. However, they’re a useful indication of how a similar situation might be approached. It’s clear a Tribunal will examine the circumstances of each case, including:
- the employer’s actions: an employer should respond to concerns sympathetically and take recommended safety measures
- the employee’s actions: did the employee do / omit to do something which might question whether they believed the danger was serious and imminent?
- the workplace environment: if it’s easier to remain socially distanced, and safety measures are in place, it may be harder to demonstrate a reasonable belief of serious and imminent danger
- communication: if an employee has raised concerns, this could help show they genuinely believed they were in serious and imminent danger
- danger in the workplace: a danger outside of work could, in theory, be enough to meet the test under section 100.
Covid fears and discrimination
It’s possible that your concerns around Covid may relate to your age, disability or race. If your employer treats you less favourably because you, or one of your loved ones, possesses one of these protected characteristics, you may have suffered unlawful discrimination. If you would like to learn more about this, you may want to read our article on discrimination in the workplace.
What can I do if I’ve been unfairly dismissed?
If you’ve lost your job because of your concerns around Covid, and you think your employer has treated you unfairly, you have a few options to consider.
- Appeal: you can appeal the dismissal through your employer’s appeal process. You may wish to speak to your union representative if you have one.
- Early Conciliation: if your employer doesn’t have an appeals process, you may be able to get help from ACAS. ACAS can ask your employer if they’ll agree to a free process called Early Conciliation, which aims to resolve disputes without going to an Employment Tribunal. Most of the time, if you intend to raise a Tribunal claim, you have to contact ACAS before you make a claim anyway.
- Employment Tribunal: If you wish to raise a Tribunal claim you usually only have 3 months (less one day) from when your employment ends to do so. You can start the process, by contacting ACAS to start Early Conciliation, even if an appeal is ongoing.
However you would like to progress, our secure platform can help you gather and organise your evidence and create a timeline, and our friendly team is on hand to help. Sign up for your free account.