Lessons to Be Learned from Employment Tribunal Cases Arising from the COVID-19 Pandemic

By Rachel Davis

Principal Associate

Employment Tribunals have been deciding COVID-related cases throughout 2021 and some first-instance decisions are now filtering through the Tribunal system considering the way employers have responded to the pandemic.

X v Y: The Fear of catching COVID-19 does not qualify as a ‘philosophical belief’

The claimant refused to return to her workplace on the grounds of health and safety as she was afraid of catching COVID and passing in onto her vulnerable partner. Her employer withheld her wages and she claimed that she had been discriminated against on the grounds of her belief which she argued was a fear of catching COVID-19 and a need to project herself and others.

The relevant legal tests for a ‘philosophical belief’ to be protected under the Equality Act 2010 are as follows:

  • The belief must be genuinely held
  • It must be a belief, not an opinion or viewpoint based on the present state of information available
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour
  • It must attain a certain level of cogency, seriousness, cohesion and importance
  • It  must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

It wasn’t disputed that the claimant’s concern for herself and others was genuinely held, however, the Tribunal held that her fear did not amount to a ‘philosophical belief’; it was merely a reaction to the threat of physical harm, specifically in relation to herself and her partner. The claim therefore failed.

Gibson v Lothian Leisure: An employee is likely to succeed in a claim for Automatic Unfair Dismissal if they raise genuine safe working concerns and the employer acts unreasonably

Mr Gibson was a chef and in the run-up to the end of lockdown, his employer asked him to return to the restaurant where he worked to help with reopening. Mr Gibson was worried about catching COVID-19 and passing it onto his vulnerable father. When he raised concerns about the lack of PPE and non-secure COVID-19 working environment, his employer dismissed him with immediate effect via text message, with no notice pay or holiday pay. Mr Gibson brought various claims, including Automatic Unfair Dismissal.

Employees are protected from day one of employment, under s100 Employment Rights Act 1996, in circumstances of danger which they reasonably believe to be serious and imminent and in doing so take appropriate steps to protect themselves. Whether a belief is reasonable depends on factors such as the extent to which the employer has assessed the risks and followed guidance and the vulnerability of the employee.

The Tribunal found that Mr Gibson had been unfairly dismissed because he took appropriate steps to protect himself and his father in circumstance where he believed he was in ‘serious and imminent danger’. Mr Gibson was awarded a total sum of £23,625.

Moore v Ecoscape UK Ltd: Protection for employees who face a risk of ‘serious and imminent danger’ is limited

Mrs Moore was dismissed by her employer for refusing to return to work due to her fears arising from the COVID-19 pandemic.   

Her employer had carried out COVID-specific risk assessments and made reasonable adjustments to Mrs Moore’s working area, however, she was still reluctant to return and refused to enter into discussions with them about the measures that had been implemented. Her employer refused her request to work from home on the basis that her role required her to deal with customers and deliveries.

Mrs Moore brought a claim for constructive dismissal on the grounds that she believed she would be in ‘serious and imminent danger’ in returning to the workplace.

The Tribunal concluded that Mrs Moore’s concerns related to a general fear about leaving her home and her perception that danger was everywhere, rather than having a specific concern about attending the workplace.

The employer had not acted unreasonably and so Mrs Moore’s claim failed.

Rodgers v Leeds Laser Cutting Ltd: The pandemic itself, and fears around it, does not give employees the automatic right to stay away from the workplace

Mr Rodgers refused to return to work during the first lockdown because of COVID-19 related concerns. He worked in a large workspace and his employer had implemented adequate safe-working measures. Mr Rodgers failed to raise any concerns relating to workplace danger.

Mr Rodgers was dismissed a month later and brought a claim for Automatic Unfair Dismissal on the grounds that he reasonably believed he was in ‘serious and imminent danger’ and took appropriate steps to protect himself or others.   

The Tribunal rejected his claim on the grounds that it was based on “general concerns about serious and imminent danger all around” during the pandemic, rather than specific concerns about safety in his particular workplace.

During the pandemic, there has been a significant rise in employees bringing claims related to COVID-19 health and safety concerns. This is gradually reducing with the uptake of the vaccine and the easing of restrictions, however, some employees will still be reluctant to return to the workplace. To navigate this difficult area, employers should ensure clear and open lines of communication with employees, listen to concerns and adapt risk assessments and health and safety measures to the specific needs of employees.

For more information and to find out how we can help you, please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.