A recent Employment Tribunal (ET) case of Gibson v Lothian Leisure the employee, Gibson, was able to successfully bring a claim of automatic unfair dismissal under s100(1)(e) Employment Rights Act 1996 (ERA). Gibson had raised concerns around the lack of Covid-safe measures in place in the workplace and the lack of PPE and felt danger that he would contract coronavirus and pass this on to his clinically vulnerable father.
In the alternative, as the employer had suggested that redundancy was the reason for dismissal, the ET held that Gibson’s dismissal was also automatically unfair on the basis of Gibson being unfairly selected for redundancy, pursuant to s105(3) ERA, after raising his concerns above.
The employer ran a restaurant where Gibson was employed as a chef. Due to the coronavirus pandemic, the restaurant closed during lockdown in March 2020, In May 2020, the employer wanted Gibson to come in to the restaurant prior to its reopening. Gibson expressed his concerns at the employer’s lack of PPE and Covid-safe measures in the workplace. The employer responded in a negative way telling Gibson to ‘shut up and get on with it’.
Shortly after this, Gibson received a text from his employer noting that they were going to run the business with a smaller team and his employment was terminated with immediate effect.
ET Decision – automatic unfair dismissal
The ET held that, amongst other claims, Gibson had been automatically unfairly dismissed either by reason of s100(1)(e) ERA by way of taking steps to protect his father from serious and imminent danger. Or, in the alternative, that he was automatically unfairly dismissed by way of an unfair selection process for redundancy due to the fact he took steps to protect his father, pursuant to s105(3) ERA.
Gibson had met the serious and imminent danger test due to the fact that the coronavirus pandemic prevalence had increased and his father was clinically vulnerable. This meant a greater concern for his health when Gibson was expected to work with a lack of PPE and other Covid-safe measures in the workplace.
Gibson was also seen as a good employee prior to raising his concerns and taking steps to protect his father.
We are now seeing more judgments in relation to s100 ERA and the Covid-19 pandemic. This is an important reminder that if employees raise concerns around fearing danger in the workplace, it is important to explore the specifics of these concerns and try to facilitate some adjustments to alleviate the danger. As an employer, if you are presented with these concerns and want practical advice please do get in touch with Nikki Hosker or another member of the Employment team.