COVID-19 and employment tribunals – the steady rise in cases and what this means for employers

From situations relating to the COVID-19 pandemic. Of particular relevance to the below cases, is section 100(1)(e) of the Employment Rights Act 1996 (ERA 1996):

  • An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that - in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

In summary, an employee will be unfairly dismissed (regardless of length of service) when dismissal is concerning health and safety and the employee reasonably felt they were in danger and took (or were going to take) steps to protect themselves or others from this danger.

Gibson v Lothian Leisure ET/4105009/2020 (29 January 2021)

This case concerned the claimant (Mr Gibson) who was a chef in a restaurant. The restaurant temporarily closed in March 2020 due to the first COVID-19 lockdown, and Mr Gibson was furloughed. Before the re-opening, the employer asked Mr Gibson to return to work. Mr Gibson's father was clinically vulnerable, and Mr Gibson was concerned about catching the virus and passing it on to him. Mr Gibson raised concerns about the lack of PPE or COVID-secure workplace measures and received a negative response from the employer.

Mr Gibson was dismissed summarily by text and was not paid notice or accrued holiday pay. The message stated that the employer was changing its business format and would be running the restaurant with a smaller team post-lockdown. The Employment Tribunal held that Mr Gibson had been unfairly dismissed under s.100(1)(e) of the ERA 1996 because he took steps to protect his vulnerable partner in a situation where there was reasonable belief of serious an imminent danger. It was also found that the wording of the employer's text could be construed as a potential redundancy situation, so it was found Mr Gibson had been unfairly selected for redundancy.

Accattatis v Fortuna Group (London) Ltd 3307587/2020 (17 May 2021)

This case concerned an employee who said he felt uncomfortable commuting and visiting the office during lockdown. The employee requested multiple times to be furloughed or work from home, all of which were denied due to the fact that the Claimant's work could not be undertaken from home and use of furlough was not appropriate because the business was busy (Fortuna Group (London) Ltd sell/distribute PPE).

The employer offered Mr Accattatis the options of taking unpaid leave or holiday, but both were declined. After another request to be placed on furlough, Mr Accattatis was dismissed by email. As Mr Accattatis did not have sufficient service to claim ordinary unfair dismissal, he alleged automatic unfair dismissal under s.100(1)(e) of the ERA 1996, as he took steps to protect himself from danger.

However, the Employment Tribunal found that although Mr Accattatis reasonably believed there were circumstances of serious and imminent danger, he did not take the necessary appropriate steps to protect himself and communicate the circumstances of danger to the employer. It was found that the request to work from home on full pay or be furloughed were not appropriate steps to protect himself from danger. As such, his claim failed.


Although neither of the above cases are binding precedent, the contrast is a reminder that the pandemic could, but does not always, justify a refusal to attend work.

Each case will turn on its own facts and the focus of employers should be on properly communicating with employees, complying with relevant workplace safety guidelines, and dealing with requests to work from home on safety grounds reasonably and with an open mind.


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