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Employment Alert – Dismissal for raising health and safety concerns automatically unfair

Posted on: 14/01/2022

What’s happening?

In the recent case of Preen v Coolink (1) and Mullins (2), the Employment Tribunal found that an employee had been unfairly dismissed after raising health and safety concerns about working during lockdown.

Mr Preen was an air conditioning and refrigeration engineer, providing emergency cover and routine servicing to domestic and corporate customers. In a WhatsApp conversation with his manager following the announcement of the first lockdown on 23 March 2020, Mr Preen stated that he was going to follow Government advice to stay at home and would only work if it was an emergency. In later messages, he also confirmed that non-essential work was ‘putting yourself and others at unnecessary risk’. The manager responded to confirm Mr Preen’s dismissal for refusing to work.

Mr Preen was successful in his claim for automatic unfair dismissal under section 100(c) of the Employment Rights Act 1996, which states that:

“being an employee at a place where there was no representative or safety committee… he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety”.

It was held that Mr Preen’s WhatsApp messages were sufficient to meet this test and that he was dismissed as a result.

Why is this important?

The most recent Government guidance in response to the developing impact of coronavirus is to work from home if you can. As a result, employees (particularly those who cannot work from home) may have concerns about going to the workplace.

All employers should have in place health and safety precautions and up-to-date risk assessments to respond to the threat of coronavirus. However, this will not automatically absolve an employer of liability if they dismiss or cause an employee to suffer a detriment for refusing to work based on health and safety grounds. Employers need to ensure they are taking adequate steps to address employee concerns before taking action. Depending on the circumstances, getting this wrong could lead to unfair dismissal and/or discrimination claims.

What should you do?

  1. Ensure your health and safety procedures and risk assessments are regularly reviewed and kept up to date with coronavirus-related developments.
  2. Continue to communicate with your workforce on the steps taken to protect them against coronavirus.
  3. If an employee still refuses to come to work despite the above, do not make a rash decision. Speak with the employee to try to find out the reason why and consider and respond to their concerns taking into account their individual circumstances.
  4. We suggest you take legal advice before taking any action against an employee (regardless of their length of service) for refusing to come to work because of coronavirus.

 
Keep an eye on our future employment alerts for any updates to these rules.
If you need more information please contact us on 0800 2800 421 or email Employment.Alert@trethowans.com to find out how we can help.
 




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