COVID-19 Dismissals

Two recent Employment Tribunal decisions found that employees dismissed for COVID-19 related reasons were not unfairly dismissed.

The first case, Kubilius v Kent Foods Ltd, relates to an employee, Mr Kubilius, who was employed as a delivery driver and, as part of his role, he would travel to and from the customer premises of Tate & Lyle. Tate & Lyle put into place a requirement for all visitors to wear face masks on their site and unfortunately Mr Kubilius failed to adhere to this direction, in spite of requests to do so. This resulted in Tate & Lyle preventing Mr Kubilius from entering their site in the future.

Following a disciplinary hearing, Mr Kubilius was dismissed by his employer for gross misconduct for failing to wear PPE and follow customer instructions, in breach of both its own and the customer policy. As such, he had failed to maintain a good relationship with the customer and cooperate to ensure a safe system of work for all. Throughout the disciplinary process, Mr Kubilius failed to acknowledge the error of his ways in his conduct which had led to him being unable to attend at the customer site and presented difficulties with providing further work.

While the Employment Tribunal found the dismissal to be fair in this case, please bear in mind that other situations of a similar kind may give rise to lesser sanctions being warranted.

In the case of Rodgers v Leeds Laser Cutting Ltd, an employee was dismissed for failing to attend work and suggesting that he would not be returning “until the lockdown has eased” as he was concerned that he may contract COVID-19 and put his vulnerable children (who had sickle-cell anaemia) at risk. As Mr Rodgers did not have 2 years of continuous service, which is needed bring an unfair dismissal claim, he claimed that he had been automatically unfairly dismissed as a result of breaches in health and safety, a claim that does not require continuity of service.

In particular, Mr Rodgers claimed that he was dismissed in circumstances where there was a danger which he believed to be serious and imminent. As a result of this, he claimed he could not be expected to return to his place of work while the danger persisted and he had taken steps to protect himself, and others, by not returning.

While Mr Rodgers’ dismissal appears tough, given his circumstances, the Employment Tribunal found that his dismissal was fair. The Tribunal took into consideration the fact that Mr Rodgers had himself breached self-isolation by carrying a passenger in his vehicle and that he had not previously raised any concerns surrounding any alleged danger prior to his absence. Also, at the time his concerns were raised in March 2020, UK government guidance provided only for hand washing and social distancing, which the employer had implemented.

This claim demonstrates the importance on employers implementing government guidance without delay and ensuring that they continuously review and update their health and safety policies.

If you have any employment questions, either as an employee or employer, you can contact a member of our team here.