A brief update: COVID-19 related workplace disputes in Employment Tribunal

Unfair dismissal – refusal to wear PPE

D Kubilius v Kent Foods Ltd: 3201960/2020

An East London Employment Tribunal recently found that the dismissal of a delivery driver for refusing to wear a face mask inside his lorry was fair. Employment Judge Barrett concluded that the Claimant’s deliberate refusal to comply with a health and safety instruction was a serious breach and amounted to misconduct warranting dismissal.

The Claimant had been making a delivery to a site in East London, where he was repeatedly asked to wear a mask inside the cab of his HGV as part of the new COVID rules. The Claimant refused and “dug his heels in” saying he was in his cab and he didn’t have to wear a mask.

Judge Barrett acknowledged that “The misconduct concerned a single incident of refusing to comply with a PPE instruction at a client site” and that although it may have been reasonable to provide a formal warning as an appropriate sanction, the Claimant’s continued insistence that he had done nothing wrong caused the Respondent to reasonably lose confidence in his future conduct. A further relevant factor was the resulting client site ban due to the Claimant’s conduct. Accordingly, the decision to dismiss fell within the range of reasonable responses.

This decision appears to be the first published decision, of potentially many, regarding health and safety disputes between employers and employees. Of course, all cases will depend on their own factual matrix but indeed the Judgment gives some insight to the approach that may be adopted at future hearings.

Interim relief applications

It is also expected that tribunals will hear an increase in dismissal claims regarding refusal to attend the workplace due to health and safety concerns. Notably, if a Claimant has made a protected disclosure regarding health and safety concerns, such dismissals may form one of the categories of claim for which interim relief is available to an employee (s128(1) Employment Rights Act 1996 and s161(1) Trade Union and Labour Relations (Consolidation) Act 1992).

Another increasingly popular category of claim for which interim relief may be available is for employees dismissed in collective redundancy consultation situations.

Employment tribunals are indeed reporting a rise in interim relief applications and it is becoming increasingly attractive for the dismissed employee. A likely contributor to this rise in applications is the current backlog in final hearings and claims being brought to a resolution.

In brief, interim relief grants continuation of the contract of employment pending the final determination of the case. In practical terms this usually means the Claimant will remain a paid employee rather than be given a specific right to attend the workplace. Such orders are still exceptional and draconian in nature. Published tribunal decisions on the issue would certainly support the view that more applications have failed than succeeded so far in 2021. In order for an applicant to succeed there are strict steps to follow, in particular:

• The application must be made within 7 days of dismissal.
• The burden of proof is on the Claimant and they must show they are ‘likely to succeed’ on all of the issues necessary to establish the claim. Case law further indicates that “ ‘likely’ does not mean simply ‘more likely than not’ – that is at least 51% – but connotes a significantly higher degree of likelihood.”  – Underhill J at paragraph 16 Ministry of Justice v Sarfraz [2011] IRLR 562.

Nonetheless, defending such applications can be time consuming and costly for Respondents. Quick steps a Respondent may wish to take when receiving notice of such applications are:

• Check that the Claimant has met the strict timescales and that adequate notice has been given of the hearing.
• Focus on any specific weak elements of the claim or fundamental disputes of fact.
• Identify the potentially fair reason for dismissal and any evidence to support it.

Despite the continued rarity of such orders being granted, it is likely that interim applications will continue to be made, particularly as more of the UK workforce is to return to the workplace over the coming months. A useful takeaway for parties in this situation may lie within the written reasons given by a Judge at the interim stage. The early indication of prospects can bring a quicker resolve and stop lengthy and costly litigation in its tracks.

Other issues on the 2021 watchlist…

• Can employers dismiss employees who refuse to have the covid-19 vaccine ?
• Can employers refuse to recruit new employees who have not had the covid-19 vaccine ?
• Could the vaccination demands imposed by employers be discriminatory?
• Can formal sanctions be imposed on employees who refuse to socially distance or breach covid regulations when not at work?

Watch this space for further updates…