Under the Employment Rights Act 1996, employees have the right not to be subjected to any detriment or dismissed where there is a serious or imminent danger to their health and safety and they have taken steps to protect themselves or others from that danger. A dismissal in these circumstances will be automatically unfair, which means there is no minimum length of service required from the employee and the level of compensation that can be awarded to the employee is unlimited.
One of the first cases (Rendina v Royston Veterinary Centre Limited 2021) regarding the dismissal of an employee who raised health and safety concerns regarding Covid-19 with her employer has now been heard at the Bury St Edmonds Employment Tribunal. The decision did not go in the employer’s favour and whilst all cases are decided based on the individual facts, it is likely to be a precedent for other tribunals to consider when dealing with cases of a similar nature.
In this case, the tribunal found the employer had automatically unfairly dismissed this employee when she raised concerns regarding the steps being taken (and not being taken) by her employer to protect the health and safety of its staff and visitors.
By way of background, Ms Rendina started working for the Royston Veterinary Centre in January 2020 and was within her three-month probationary period when she was dismissed in March 2020, which coincided with the relatively early stages of the Covid-19 pandemic taking hold in the UK.
Ms Rendina is of dual nationality (Italian and British) and her concerns regarding Covid-19 could be said to have been influenced by her increased awareness of the spread of the virus in Italy, a country which was more severely affected by the pandemic ahead of the UK.
The employer instructed staff to continue working as normal, even after the Prime Minister announced the country was being placed into lockdown on 23 March 2020. During a staff meeting, he claimed the virus was just like having a cold or the flu and it was being ‘over hyped’ by the press. He told the team there was no need for hand sanitisers, wipes or notices at the centre.
When Ms Redina suggested that they limited consultations to one person, minimising contact between staff and visitors, this proposal was rejected. When staff were told to continue working as normal, it made Ms Redina feel uneasy and she avoided carrying out non-essential routine procedures.
Shortly after raising her concerns, Ms Redina received a letter from the company dismissing her, citing ‘a level of discord between [us] that was not amenable’. During the tribunal proceedings, the employer claimed that she was dismissed during her probationary period because of her poor performance, poor timekeeping and complaints having been received from clients.
Whilst there was evidence of a single complaint having been made about Ms Redina prior to her dismissal, the tribunal found that there was insufficient evidence to support the employer’s reasons for her dismissal and that she had in fact been dismissed for reasons connected to her having raised health and safety concerns regarding the risk of transmission of Covid-19 within the workplace.
This meant her claim for unfair dismissal was successful and the fact that she had less than two years’ service (the usual timeframe required for an unfair dismissal claim) was irrelevant as it was automatically unfair.
As stated above, all cases will turn on their individual facts, however, in respect of the impact of Covid-19, it is likely to be relatively straightforward for an employee to establish the danger to health and safety of individuals is both ‘serious’ and ‘imminent’.
Even with employers who have put measures in place or who have taken steps to ensure they are ‘covid-secure’ there is, of course, no guarantee of complete safety. Therefore, we recommend that employers are cautious whenever an employee raises any concerns with them relating to their health and safety and take all recommended steps to minimise risk, if they want to avoid being brought before an employment tribunal and held accountable for their actions or decisions.
If you would like to discuss any of the above issues or any other employment matter, please do not hesitate to contact Joseph Oates on email: jmo@cooperburnett.com or Natasha Smith on email: nes@cooperburnett.com or tel: 01892 515022.
