As was always expected by anyone working in employment law, legal cases caused by the Covid pandemic are on the rise.
Today, we are reporting on the results of several notable cases to reach court since the pandemic began, highlighting the pitfalls and ‘what NOT to dos’ for business owners and HR specialists to consider.
Fears do not automatically equate to funds
From heightened anxiety to shielding the vulnerable, many employees felt compelled to avoid work when the pandemic originally took hold. Now, several claims for unfair dismissal later, we consider how each one played out in the courtroom and what their results mean for employers moving into a so-called post-pandemic era.
The first comes from a recent Guardian article, which tells of a woman who insisted her fear of Covid forced her to stay home. Not an issue for her, perhaps, although it was indeed viewed that way by her employer when she repeatedly failed to show up for work.
The woman – who remains unnamed (as does her employer) – claimed discrimination on the grounds of her bosses forcing her attendance at work when the pandemic was a danger to public health. The fear of catching the virus was so intense, said the claimant, she was forced to protect herself and others. Her employer disagreed and stopped her pay. The court found in favour of the defendant and stated while her fear was indeed real, the woman had no right under the Equality Act 2010 to receive compensation.
Personnel Today reports on several cases where Covid has caused employee grievance to the point of legal proceedings.
In one such case, Rodgers vs Leeds Laser Cutting Ltd, employee Mr Rodgers claimed he could not work as he did not want to risk catching and infecting his young children. After texting the firm to explain his absence, his employment was terminated – leading to his claim for unfair dismissal.
After the court heard about the employer’s multiple attempts to minimise the risk of Covid spreading – including social distancing, reduced employee numbers and enhanced cleaning – the court found in favour of the defendant, citing their right to expect the physical attendance of their employee at work.
What about when it’s the vulnerable people at risk?
Some cases – such as Gibson vs Lothian Leisure – have proved in favour of the plaintiff. Here, Mr Gibson – a chef – was placed on furlough and then later asked by his employer to return to work to help prepare for the facility reopening to the public. Gibson voiced his concerns on feeling unsafe about the state of the premises at that time (and the potential impact on his shielding father was he to catch the virus); his employment was then terminated. The jury found Gibson was unfairly dismissed as the employer could not demonstrate any increased safety measures on the premises. Gibson received a payment of circa £24,000.
Furlough: an employee’s right?
Wrong. In fact, many cases have arisen from a misconception the worker is legally entitled to furlough over continuing to work, with Woods vs Hawkes Ltd and Kapetanakis vs Historical Souvenirs Ltd among them. Each time, the court has found in favour of the employer.
Yet when an employer has opted for redundancy instead of furlough, the result has been quite the opposite. Take Mhindurwa vs Lovingangels Care Ltd, where the plaintiff was never offered furlough but simply made redundant. The legal team acting for Mhindurwa argued this was unfair since furlough would have ensured their client’s position was ongoing.
Conclusions
Many claims occurred during the early stages of the pandemic when we knew little about the virus and its potential ongoing impact. Of course, now armed with more intelligence than we were in mid-2020, employers are likely in a better place to deal with employee issues reasonably. Understanding employment law is always advisable to avoid an unexpected court summons, and we highly recommend seeking expert advice from a professional.
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