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.


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

Sign up

Enter your email address for legal updates on Employment & Immigration Law.

Please see our privacy policy regarding use of your data.

Employment Management Training Sessions


Darren Smith, a Partner in our Employment team, will be hosting a series of online training sessions looking at essential employment law for managers. Each session will be £79.95 + VAT.

> How to Avoid the Problems of Recruitment & Probation
> Equality, Diversity & Inclusion
> Absence Management
> How to Performance Manage
> Problems with Social Media & actions outside of the workplace
> Disciplinaries and Grievances
> Conducting a Fair Redundancy Process

Contact us

    The information you submit will be handled in accordance with our privacy policy.

    Latest Insights - sign up to our Emailers

    Our Emailers will bring you the latest news and insights from our legal teams as we look at the key talking points in life and in law.

    Our insights will include articles, podcast discussion and information about our events and services.

    You can sign up to as many as you wish and you can opt out at any time.

    Sign up to our Emailers

    Please see our privacy policy regarding use of your data.

    Latest News & Insights


    The Legal Room UK Podcast features a diverse range of specialists offering expertise on a variety of topics. 
    Subscribe on whatever podcast platform you use.

    Top Legal Insights


    Contract Law

    Material Breach of Contract

    What is a ‘material’ breach of contract by a party to a commercial contract? This is a critical issue regularly considered by the courts. What constitutes a material breach and what are the remedies?

    Property Law

    Commercial Lease: The Financial impact on Landlord and Tenant

    Coronavirus (COVID-19) and the restrictions now in place to control its spread, are having a significant effect on many business sectors.

    Divorce and Family Law

    Divorce in Lockdown: Can I get some discreet legal advice?

    We have spoken to clients who are unfortunately experiencing some family issues, and would like to obtain expert legal advice, yet don’t know how...

    Land & Property Dispute

    Restrictive Covenants – The Price of Modification

    Having identified that your land is burdened by a restrictive covenant and for the purposes of this article the covenant in question will be that only one residential building can be erected on the land. What do you do next?

    Wills, Trusts and Probate

    Why is having a will so important?

    It is entirely up to you if and when you want to create a Will, but it is important to be aware of the consequences of not having a Will.

    Award winning legal advice

    We are solicitors in Camberley, Wokingham and London. In 2019, Herrington Carmichael won ‘Property Law Firm of the Year’ at the Thames Valley Business Magazines Property Awards, ‘Best Medium Sized Business’ at the Surrey Heath Business Awards and we were named IR Global’s ‘Member of the Year’. We are ranked as a Leading Firm 2022 by Legal 500 and Alistair McArthur is ranked in Chambers 2021.

    Building 2  Watchmoor Park, Riverside Way, Camberley, Surrey  GU15 3YL
    +44 (0)1276 686 222

    Ascot (Appointment only)
    102, Berkshire House, 39-51 High Street, Ascot, Berkshire SL5 7HY
    +44 (0)1344 623388

    London (Appointment only)
    60 St Martins Lane, Covent Garden, London WC2N 4JS
    +44 (0)203 326 0317

    Wokingham (Appointment only)
    4 The Courtyard, Denmark Street, Wokingham, Berkshire RG40 2AZ
    +44 (0)118 977 4045

    Email: info@herrington-carmichael.com

    Our Services

    Corporate Lawyers
    Commercial Lawyers
    Commercial Property Lawyers
    Conveyancing Solicitors
    Dispute Resolution Lawyers
    Divorce & Family Lawyers
    Employment Lawyers
    Immigration Law Services
    Private Wealth & Inheritance Lawyers
    Startups & New Business Lawyers

    © 2022 Herrington Carmichael LLP. Registered in England and Wales company number OC322293.

    Herrington Carmichael is authorised and regulated by the Solicitors Regulation Authority with registration number 446245.

    Pay Online

    Privacy Policy   |   Legal Notices, T&Cs, Complaints Resolution   |   Cookies 
    Client Feedback   |  Diversity Data