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Unfairly dismissed for refusal to return to the UK during lockdown

Jul 21, 2021

The Employment Rights Act says that an employee will be deemed automatically unfairly dismissed where the reason for their dismissal is that they took appropriate steps to protect themselves from danger, which they reasonably believe to be serious or imminent.

In the recent case of Montanaro v Lansafe Ltd, the Employment Tribunal considered whether an employee had been automatically unfairly dismissed for staying in Italy during the outbreak of the pandemic and refusing to return to his place of work in the UK.

The Facts

The Claimant, Mr Montanaro, was employed by Lansafe to provide IT services to their clients. The Claimant thought he had sought permission to take holiday to attend his sister’s wedding in Italy. Whilst he was out there, Italy entered a lockdown and UK guidance changed so that people returning from Italy had to enter a 14-day self-isolation period.

On 11 March 2020, Lansafe wrote to the Claimant confirming that he had been dismissed because he had taken unauthorised leave and failed to follow proper processes in relation to his holiday. Lansafe sent this letter to the Claimant’s home address even though they knew he was still in Italy, so the letter was not received. Unaware of his dismissal, the Claimant continued to work as normal for Lansafe’s clients remotely and kept the company updated about the travel restrictions in Italy. On 1 April 2020, the Claimant received his P45 and a final payslip which indicated that his employment had been terminated.

Lansafe’s case was that the Claimant was dismissed for failing to get approval for his holiday and they were able to dismiss him without a process due to his short length of service. The Claimant’s case was that he had been given approval for the holiday and that the real reason for dismissal was his refusal to return from Italy due to health and safety concerns and his belief that he needed to protect himself from danger which he believed was serious and imminent. He therefore bought a claim for automatic unfair dismissal.

The Tribunal ruled that the Claimant had been dismissed because he had raised concerns about the ongoing pandemic and requested to work remotely, not because he had taken alleged unauthorised holiday. He was therefore unfairly dismissed. In its judgment, the Tribunal held that the Claimant had reasonably believed the danger of the pandemic was serious and imminent and he had taken appropriate steps to protect himself. The Tribunal also drew attention to the fact the Claimant was actively engaging with Lansafe, requesting advice and assistance on the travel restrictions, and was able and willing to continue working remotely until the situation had changed.

Summary

The Tribunal ruled that the outbreak of the Covid-19 pandemic was considered a danger, with a risk of serious illness or death. In this case, the Claimant had under two years’ service and many employers would have deemed the dismissal fairly low risk. However, this is an important reminder to all employers to carefully consider dismissals on a case by case basis and the risks associated with it, particularly where an employee has raised concerns about health and safety.

It is important to note that a key reason why the Claimant was successful in his claim for unfair dismissal was because Lansafe had failed to follow a fair and thorough process when dismissing and was unable to persuade a Judge that the Claimant was dismissed for the reasons they said he was. This judgment is a reminder to employers that all decisions to dismiss should be well thought through, documented and justifiable. It would be interesting to see whether the Employment Tribunal would have come to an alternative outcome had Lansafe followed a fair process and done a fair assessment of whether there was a risk to health and safety or not. Such an assessment may have led Lansafe to decide there was a genuine risk and to not dismiss the Claimant.

Finally, this case serves as a useful reminder for all employers that there is no blanket approach to dealing with issues surrounding Covid and the Tribunal will take each matter on a case-by-case basis. In this case, the Government guidance and the ability to work remotely was important.

For further information or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Darren Smith

Darren Smith

Partner, Employment Law

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