Today’s blog is the latest in our series bringing you a selection of the latest Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) cases. In recent months there have been two particularly interesting judgments on the topic of how employers have responded to employee concerns regarding Covid-19 safety. Read on for more details of what the courts have been ruling, and what implications these may have for employers…
In recent months we have seen rulings in the cases of Mr D Rodgers v Leeds Laser Cutting Ltd (EAT ruling issued March 2022) and Mr R Galang v Kestrel Grove Nursing Home (ET ruling issued in February 2022).
In Rodgers v Leeds Laser Cutting Ltd, Mr Rodgers told his employer at the start of the pandemic that he would not be coming back to work until lockdown eased. Despite the efforts of his employer to provide reassurance regarding Covid-19 safety precautions, he refused to return and was subsequently dismissed. In arriving at a judgment, Judge James Tayler noted that he understood Mr Rodgers had genuine concerns about the pandemic and the safety of his children, but that this did not mean that he had a genuine belief that there were serious and imminent circumstances of danger that prevented him from returning to work. It was, therefore, found that Mr Rodgers had been fairly dismissed.
In Galang v Kestrel Grove Nursing Home, Mr Galang had a period of sickness absence, for which he was issued with notes from his GP citing “suspected Covid-19”. Following his return to work, Mr Galang was concerned that colleagues working in the kitchen of the care home were not wearing masks. He mentioned to a colleague that he would raise it with the matron, and made a joke about reporting it to the Care Quality Commission (CQC), the regulatory body. Mr Galang’s manager, Mr Tripp, became aware of this. Mr Tripp called a meeting within which he shouted and made a number of accusations, including questioning whether Mr Galang’s absence had been genuine, and accused him of lying to his GP and falsifying doctors notes. Mr Galang left the meeting saying that he was scared and shaking, and subsequently resigned. The Employment Tribunal found no reasonable basis for the allegations of lying, and that Mr Tripp had acted in an aggressive manner. Mr Galang’s claim for constructive unfair dismissal was therefore successful.
These cases are interesting to employers today for two reasons. First, the case of Rodgers v Leeds Laser Cutting will hopefully provide reassurance to employers who found themselves of dealing with employees who were unwilling to attend work at the start of the Covid-19 pandemic, despite the employer’s best efforts in terms of safety precautions, and in the absence of a requirement for the individual employee to shield. That is this an EAT ruling (rather than just an ET ruling), and has therefore been tested twice, gives it particular weight also.
The second reason, however, is that these highlights the importance of specifics in employment tribunal cases. It can be easy when researching an employment matter to identify a case that seems to be about something similar and assume that the same will apply to you. However, we can see when looking at these cases that the details of how individuals behaved make the key difference in identifying which party behaved reasonably. Whilst these two cases may centre around the theme of Covid-safety, this principle applies in all employment law matters.
The ViewHR team supports employers with a wide range of HR matters. If you are an employer and would like to learn more about the support we can offer to reduce the chances of finding yourself in an employment tribunal, please contact us today for an initial discussion.