To say that the Employment Tribunal system currently has a back log of cases would be a chronic understatement. Over a year and a half since the COVID-19 pandemic began and we are starting to see the first COVID related decisions work their way through the overburdened tribunal system.
Throughout the pandemic our employment team have advised our corporate clients on best HR practice, employee engagement, COVID-19 security and risk assessments. This important risk based, and health and safety focused, advisory work continues with gusto after the so-called “great re-opening” on Monday 19 July 2021, and it extends to both the workplace and also the home working environment.
One of the key COVID related tribunal battle grounds was always going to be Health and Safety matters, and the interplay between potential automatic unfair dismissal and also whistleblowing. In this note we highlight an interesting tribunal decision from the Scottish Employment Tribunal which may show the start of a trend that employment tribunals are prepared to take a very firm view on health and safety related issues.
Gibson v Lothian Leisure¹
The Claimant was Mr Ben Gibson. He was employed as a restaurant chef by Lothian Leisure at the Sun Inn in Dalkeith, Midlothian.
Mr Gibson employment started in February 2019. He was successful and had been promoted. The restaurant had to shut in March 2020 due to the lockdown restrictions and Mr Gibson was put on furlough in the second week of March 2020.
The Claimant’s father has a number of medical issues include a brain tumour, Colitis, and Addison’s disease, and as such was shielding during the lockdown.
During his employment the Claimant’s take home ay was c. £2,000 per month, including tips. He was paid a reduced rate during furlough, and the Tribunal found that he was not paid the correct amount and there was a shortfall of £340 per month. There was also another shortfall in that Mr Gibson found out that the pension deductions which the respondent deducted from his wages were not actually paid into the Claimant’s pension.
During furlough, and in the run up to and in the run up to the end of lockdown and the prospective reopening of the restaurant sector the respondent wanted the claimant to undertake some work (“coming in and helping out for a bit”). At that time, the Claimant had begun to raise concerns with the respondent about the possibility of his father catching Covid-19 from him on his return to work.
The Claimant says that the respondent provided no personal protective equipment (PPE) for staff and that they had no intention of requiring staff to take precautions and create a COVID-19 secure working environment.
The Tribunal Judge describes the Respondent’s response as being in a way that “might best be described as very robustly negative”. The Claimant gave evidence that he was told to ‘shut up and get on with it’. The Claimant believes that the Respondent started to see him as a nuisance despite the previously good relationship.
Termination of employment via text message
Without any discussion – or indeed any process at all – the Claimant’s employment was terminated with immediate effect in May 2020, by a director of the Respondent, by text message no less. An extract of that message reads as follows:
“Moving forward I’ve decided to terminate your employment with ourselves. We are changing the format and running of the business on a day-to-day basis, and at the end of the lockdown process we will be running the business with a smaller team. Thanks for all your efforts in the past and I wish you well for the future.”
The Claimant received no notice pay and no pay for accrued untaken annual leave.
Automatic Unfair Dismissal
The burden to show an automatic unfair dismissal is on the claimant and he must show that there was a comparator employee who was not dismissed. The Tribunal Judge explained that the text message dismissing the Claimant suggests that the Respondent will have a smaller team “at the end of lockdown”. This wording was considered to be indicative of a dismissal either for redundancy or business reorganization which may amount to some other substantial reason. The Claimant’s evidence is that he was a good worker, he had been praised and promoted and had worked successfully up until he began to raise issue around COVID-19 security.
The Tribunal found that that either the Claimant was dismissed because in circumstances of danger which he reasonably believed to be serious and imminent he took steps to protect his father. Or, alternatively, the Claimant was selected for redundancy because in circumstances of danger which he reasonably believed to be serious and imminent he took steps to protect his father.
Compensation
The Claimant was unemployed from 31 May 2020 and was therefore unemployed for 29 weeks. The Claimant was awarded the following sums by Employment Judge Martin Brewer:
- A basic award of £6,562
- Compensation of 29 weeks’ pay at £500.00 per week, a total of £14,500.00.
- A payment in lieu of untaken statutory annual leave of £1,200.00.
- An unlawful deduction from wages award [recognising the shortfall in furlough pay] of £720.00 and a breach of contract award of £142.85 for the sums which we deducted for pension contributions, but which were not paid to the Claimant’s pension.
- Notice pay – £500 in respect of 1 weeks’ notice.
As a cautionary tale to all respondents, it should be noted that Lothian Leisure did not respond to the Claimant’s claims and did not appear at the hearing. The Tribunal Judge had sight of a number of documents provided by the Claimant, including various text messages and emails (one of which I refer to above).
The case reiterates the need to take early legal advice when faced with a grievance from an employee, which then escalates into an Employment Tribunal claim. It is also a reminder of the need to consult with staff and to ensure that correct HR procedures, and risk assessments, are in place and are followed.
The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for your specific circumstances and before any action is taken.
@ Miller Rosenfalck LLP, July 2021
