UK Covid-19: "work from home" guidance continues to 19 July; recent tribunal cases highlight issues for employers planning return to the workplace

Yesterday evening saw the postponement of 'Freedom Day' and the continuation of the 'work from home if possible' guidance until 19 July.  The news is disappointing for all and economically challenging for many, particularly given that it seems there will not be any delay to the requirement for employers to contribute 10% to furlough pay from 1 July.  The end date for virtual right to work checks (see here) has been postponed to 31 August 2021.  On the upside, the delay does give a little extra time to those employers still needing to prepare for a fuller return to the workplace.  Recent tribunal cases have highlighted the need for a sharp focus on the adequacy of health and safety measures, for procedures to ensure employee concerns are handled appropriately and for extra caution when dismissing in this context.

Employees have unfair dismissal protection from day one of their employment if the reason or principal reason for dismissal is for carrying out certain health and safety activities, raising health and safety concerns in certain ways, or where the employee reasonably believes there are circumstances of serious and imminent danger to health and safety and they leave or refuse to return to the workplace or take appropriate steps to protect themselves or others.  There are similar protections against detriment, and from 31 May 2021 these have been extended to workers as well as employees (following a successful judicial review case summarised here).

Tribunal rulings on the fairness of dismissal in given situations have started to trickle through and, although fact-specific and not binding on other tribunals, are instructive as to the likely approach.  The cases so far have concerned situations during the first phase of the pandemic, where virus levels were high and vaccines unavailable;  in most of these, tribunals have readily accepted that employees have held a reasonable belief in being at serious and imminent danger, particularly where the employer has failed to follow the then current government guidance and take reasonable health and safety measures (and the employee has not acted in such a way as to belie the claimed belief).  Developments over the course of the pandemic could mean a more critical approach is taken on this issue where the facts concern later periods, for example if virus levels were lower at the relevant time or an individual had increased immunity due to vaccination or prior infection, although of course the increased transmissibility and current dominance of the Delta variant changes the picture once again.  If an employee does raise concerns about returning to the workplace, it will be important for an employer to engage with them and explain what measures have been put in place, what steps the employee can take themselves to reduce risks at work, and consider any additional reasonable steps suggested.

The reported cases so far include the following:

• In Gibson v Lothian Leisure, an employee was dismissed after raising concerns about returning to work from furlough in May 2020 given the lack of PPE and other workplace COVID-secure measures and the fact that he lived with his clinically vulnerable father. The tribunal accepted that he was automatically unfairly dismissed because of taking steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger, namely the growing prevalence of COVID-19 and the potential significant harm to the employee's father if he contracted the virus.
• This can be contrasted with the case of Rodgers v Leeds Laser Cutting, where an employee told his manager that he would not return to work until after lockdown because he feared he would infect his clinically vulnerable children with COVID-19. The tribunal found that the employee did not have a reasonable belief in serious and imminent workplace danger on the facts. The employer had implemented the precautions recommended by government advice at the relevant time and the employee had not raised any particular concerns about the workplace measures nor taken any steps to avert danger before absenting himself.  The employee had also breached self-isolation guidance himself, to drive a friend to hospital, on the day after leaving work, thereby undermining his claim to hold the required belief.  The employee's dismissal for refusing to return to work was not automatically unfair.
• In Accattatis v Fortuna Group (London) Ltd the employment tribunal did not consider that it was an appropriate step for an employee to insist on being placed on furlough as a means of protecting himself from the risks associated with commuting by bus and working at the office in Spring 2020. The employer, who sold and distributed PPE, justifiably concluded that the employee's role could not be done from home and that he was not eligible for furlough given its business was busy, but instead it offered him holiday or unpaid leave if he wished to stay at home. The employee declined and requested furlough again, refusing to return.  The tribunal noted that the evolving nature of the crisis and lack of knowledge about the virus in the early stages made it difficult to assess, but in this case it was "prepared to accept" that the employee did have a reasonable belief in serious and imminent danger (notwithstanding that the employee appears not to have raised any concerns about lack of workplace safety measures). However, the employee's demands to be furloughed or work from home were not appropriate steps to protect himself from danger in the circumstances.  In any event, the reason for dismissal was to prevent the employee achieving two years' service when he was perceived to be a difficult and challenging individual, and not his reluctance to come into work.

Employers may also face challenges ensuring some staff follow mandated health and safety measures.  The key points for employers are to ensure instructions are reasonable and clearly communicated, and that any process for dealing with transgressors is applied fairly and consistently;  if so, ultimately dismissal may be a fair sanction.  In Kubilius v Kent Foods the employment tribunal ruled that an employer had fairly dismissed an employee who refused to wear a face mask as required by a client when the employee was visiting the client's site.  The employee had refused to comply with a clear instruction and as a result was banned from the client's site.  Dismissal was within the range of reasonable responses given the importance of maintaining good relationships with clients, the employee's continued insistence that he had done nothing wrong (which caused concern as to his future conduct) and the practical difficulties arising from his being banned from the client's site (given the majority of work was for that client).  Of course in some cases an employee may have a legitimate reason for not wearing a face covering, so it is important to check whether this is the case and, if so, consider whether adjustments to the role or an alternative role could be offered.

Although not in a COVID-19 context, there have also been two recent Employment Appeal Tribunal decisions which will be relevant when considering how to handle COVID-related health and safety concerns as employees return:

• In Flatman v Essex County Council, an employer's cumulative and persistent failure to provide health and safety training to an employee required to perform lifting duties, despite repeated requests, was a fundamental breach of the implied contractual duty to provide a safe work environment. A lack of training on one occasion or for a short time may not be sufficient to amount to a fundamental breach, but the breach can become fundamental where it is repeated or persists over an extended period (in this case around eight months), given the increased and continuing risk and/or actual harm caused (the claimant here developed and reported back problems a few months in).

Once committed, a fundamental breach cannot be cured by the employer, although the employee may be found to have affirmed the contract and waived the breach (for example, by waiting too long to resign).  The employee in this case had not affirmed the contract and so was entitled to resign and claim constructive dismissal.  This was notwithstanding the employer's promise of training and changed duties, given after the point at which the conduct had amounted to a fundamental breach.  The EAT commented that, in considering whether there has been a fundamental breach of the duty provide a safe work environment, the employer's statements of intention or attitude are relevant factors (if made before the point at which a fundamental breach has occurred), but they will usually be less significant than they might be were the claim one of breach of trust and confidence.

The case highlights the importance of employers taking steps promptly to address health and safety concerns and ensuring that promised changes or training are not delayed, to avoid the situation becoming a fundamental breach of health and safety duties.  Ignoring concerns for an extended time may amount to a fundamental breach and, once that point is reached, it will be too late to "cure" the breach however genuine the employer's concern and intentions at that stage.  Of course, aside from the legal position, it is still worth an employer making genuine attempts to remedy past failings as this could be sufficient to persuade an employee not to resign.

• The EAT decision in Sinclair v Trackwork Limited makes clear that an employer cannot fairly dismiss an employee for carrying out health and safety duties on its instructions, simply because the changes are unwelcome to the workforce and cause "upset and friction".

It is automatically unfair to dismiss where the reason or principal reason is that the employee carried out health and safety activities having been designated to do so.  Mr Sinclair was asked to implement a new safety procedure, but the employer failed to inform his colleagues of this instruction and also failed to convey to Mr Sinclair its desire that the change be implemented gradually.  Mr Sinclair's attempts to implement the change led to complaints about his "over-zealous" methods.  The employer decided to dismiss, arguing that the dismissal was because of the way in which the health and safety activities were carried out and not the activities themselves and therefore it should not be automatically unfair.  The EAT rejected this argument, noting that carrying out health and safety activities will often be resisted or regarded as unwelcome by colleagues and it would wholly undermine the protection if an employer could rely on the upset caused by legitimate health and safety activities as a reason for dismissal unrelated to the activities themselves. It is likely only to be possible to separate an employee's conduct from the carrying out of the activities if their conduct is "wholly unreasonable, malicious or irrelevant to the task in hand".

Given the existence of diverging views on COVID-19 risk and appropriate safety measures, the case highlights the importance of good communication both with managers implementing health and safety measures and with the wider workforce, to ensure changes to workplace practices are put in place with minimal "friction".  Employers should not jump to the conclusion that dismissal will necessarily be justified simply because upset is caused by an employee's implementation of safety measures, given this may be unavoidable and the employee may have carried out the activities entirely properly.

Finally, the financial pressures of the pandemic have caused some employers to seek to agree changes to employees' contracts and, where these are not accepted, to dismiss (and potentially offer to re-employ on the new terms).  Employers may well have a potentially fair reason for such dismissals, but it will be critical to ensure they adopt a fair procedure and consultation and that the process is not rushed unnecessarily.  In Khatun v Winn Solicitors Limited, the employment tribunal held that it was potentially fair to dismiss an employee for refusal to agree a variation to her employment contract giving the employer the right to unilaterally reduce her pay and hours to 80% or place her on furlough, potentially for up to nine months.  She was the only one of around 300 staff not to agree and the tribunal accepted that the firm had "sound, good business reasons" for the variation which amounted to the potentially fair "some other substantial reason" for dismissal.  However, dismissal was unfair in the particular circumstances.  There was no proposal to furlough the employee immediately and the employee had indicated she would consider a variation if it did become necessary to furlough her in the future.  The employer had acted too quickly in dismissing within two days of sending the new terms;  it had failed to consult meaningfully (particularly as it would only have needed to consult with one employee given the rest of the workforce had agreed) and had not reasonably considered solutions other than dismissal.  It would also have been reasonable in the circumstances to offer of a right of appeal, as this could have provided an opportunity for both sides to cool off and reach an agreement.

Following considerable media and MP criticism of recent large-scale "fire and re-hire" practices, in January 2021 the Government asked Acas to investigate.  Their report published on 8 June 2021 revealed a lack of consensus on whether there is a need for reform and noted the risk that reform could result in more businesses failing and jobs lost.  The Government has since stated that it considers the use of fire and rehire to be unacceptable as a negotiation tactic and that it should only be used as a last resort, but that it has no current intention to ban the practice.  Instead it has asked Acas to produce better guidance for employers on good practice, although "nothing is off the table" if the guidance proves ineffective.

Please do get in touch with your usual Herbert Smith Freehills contact if you would like to discuss preparations for a wider re-opening of the workplace.