An employment tribunal has held, in one of the first cases concerning an employee’s refusal to return to the workplace after the coronavirus (COVID-19) pandemic lockdown, that he was unfairly dismissed.

The case - Quelch v Courtiers Support Services Ltd – involved an employee who worked as a compliance analyst for a financial services firm. He normally worked in the firm’s Henley office, but when the pandemic started in March 2020, he asked his manager if he could start working from home as his girlfriend was extremely vulnerable medically. This was agreed and over the next few months, his line manager reported that the situation was working very well.

In May 2020, however, the company announced that employees would be expected to return to work on a phased basis over the following few months. Mr Quelch was expected to return in July. He emailed his employer on 1 July explaining that he was "extremely anxious" about his proposed return to the point whereby his mental health and that of his girlfriend were being negatively affected.

His employer insisted that they could not make an exception for him and told him that if he did not return, he would have to take annual leave or sick leave or else face disciplinary action. He refused to return, partly because he was concerned that should he do so, not all the appropriate safety measures were being observed in his workplace, and partly because the instruction contravened government guidance at the time. When he did not return to work, his employer disabled his systems access and placed him on unpaid leave. Although he remained ready and willing to work from home, he was dismissed for gross misconduct on the basis that he refused to follow a reasonable management instruction.

Considering the facts of the dismissal, the tribunal held that Mr Quelch had been automatically unfairly dismissed because he found himself in circumstances of danger which he “reasonably believed to be serious and imminent” contrary to section 100(1)(d) and (e) of the Employment Rights Act 1996. The tribunal found that although the pandemic did not in itself amount to “circumstances” of serious and imminent danger, Mr Quelch had legitimate concerns in relation to the company’s risk assessment and failure to follow the guidance at the time.

The tribunal also upheld his claim for ordinary unfair dismissal on the basis that his employer had not shown that they had a potentially fair reason for the dismissal and that both the sanction and the procedures they followed fell outside the range of reasonable responses open to a reasonable employer. The tribunal went on to find that the company had subjected Mr Quelch to detriment contrary to section 44 of the 1996 Act.

Finally, the tribunal upheld his claim for breach of contract (the failure to pay him for his notice period) and an unlawful deduction from wages claim covering the time he was on enforced unpaid leave.

 

Comment

This follows other first instance decisions that the existence of the pandemic in itself is not enough to amount to “circumstances of serious and imminent danger”. However, tribunals will consider cases where employees are forced to return to workplaces against government guidance and when adequate health and safety safeguards are not in place. As such, those who are classed as clinically vulnerable or who have relatives who are and have been treated unfairly, should be encouraged by the tribunal’s approach in this case.

To read the judgment in full, click here.