People have adopted widely different attitudes and approaches to changes to working practices during the Covid 19 pandemic. Understandably this has led to numerous disputes between employers and employees; a fair number of those dismissals have been challenged in tribunal.
Generally an employee has to have been in post for two years before being able to bring unfair dismissal proceedings to the industrial tribunal but there are exceptions to this rule which have been explored. If an employee has been dismissed for an excluded reason then that dismissal is automatically unfair.
S.100 Employment Rights Act 1996 sets out a range of circumstances where dismissals are automatically unfair. One of these circumstances applied in Gibson v Lothian Leisure. The case is interesting because the danger here was not to Mr Gibson, himself but to his father and was therefore occurring outside the workplace. Mr Gibson became increasingly concerned about the safety of his father, with whom he lived. His employers were not providing him with any PPE at work and had no intention of so doing. Mr Gibson senior was particularly vulnerable to Covid and Mr Gibson’s employers were so unimpressed when Mr Gibson raised his concerns that they selected Mr Gibson for redundancy. The tribunal agreed that in the circumstances Mr Gibson’s belief that he faced a “serious and imminent danger” was sufficient to render that dismissal automatically unfair.
Another case where the tribunal found that an employee had been made “redundant” after expressing concerns about the pandemic was Preen v Coolink Ltd and Mullins. In this case Mr Preen expressed concern about doing non urgent work in March 2020 explaining that he did not think that this was in line with government guidance. He could not work from home and expressed himself completely willing to undertaken urgent work. There was no attempt by Mr Preen’s employers to engage with him and the tribunal concluded that the raising of concerns here was exactly the situation which s.100(1)(c) had been designed to deal with. His dismissal was therefore automatically unfair.
No doubt there will be many more cases and it is, of course, essential to remember that industrial tribunal proceedings do not create precedent. Nevertheless this is the topic of the moment, and it might be good to mention some of these cases if you’re doing Employment Law.