Some Interesting Employment Tribunal Cases

It’s been eighteen months now since COVID-19 hit the UK and within the last few weeks, we’ve seen the first of what are likely to be a number of Employment Tribunal decisions relating to both employees and employers actions during the pandemic.

None of these decisions create any legal precedents, only decisions made by the Employment Appeal Tribunal and above do this, but they do give us an indication of the how Employment Tribunals are applying existing employment laws to what were too often described as ‘unprecedented times’.

The first case of interest (Prosser v Community Gateway Association Ltd) considered whether an employer had acted in a discriminatory manner by sending a pregnant employee home and delayed her return until acceptable social distancing measures could be put in place.

The Employment Tribunal dismissed any claims for discrimination or victimisation and said that it accepted that the employer was merely acting in compliance with public health advice laid out by the Government; the employee was paid full pay by her employer for the time spent at home and it’s unclear whether this had any bearing on the Court’s decision.

The second case (Ham v Esl Bbsw Ltd) considered an unfair dismissal claim from an employee who was dismissed after he refused to deliver equipment to his manager’s home whilst his manager was self-isolating with COVID symptoms. The employee had offered to deliver the equipment to another location where it could be safely stored until his manager was well enough to collect it or for it to be delivered.

The Employment Tribunal accepted that the employee was dismissed primarily for raising legitimate health and safety concerns making his dismissal automatically unfair.

Finally, there have been two cases (Mhindurwa v Lovingangels Care Ltd and Handley v Tatenhill Aviation Ltd) considering whether employers had acted unreasonably by dismissing employees on the grounds of redundancy rather than furloughing them under the Government’s CJRS scheme.

In the first of these cases, the employer was found to have acted unreasonably (and hence unfairly) by not furloughing the employee; an employer should take all reasonable steps to avoid redundancy and furloughing the employee was considered by the Employment to be reasonable in the circumstances.

However, in the second of these cases, the Employment Tribunal accepted that the employer needed to cut costs in any event and that as such the decision not to furlough the employee was reasonable in he circumstances and hence the dismissal was found to be fair.

Much as these may appear to be conflicting decisions, what’s clear is that the facts of the case are going to be key to determining whether a decision to furlough as an alternative to redundancy or not, is reasonable or not, and hence whether any redundancy is fair or unfair.

Please don’t hesitate to get in touch if you have any questions on this or any other HR matter.