Background:

This was a multiple claim involving four claimants from a pool of 55 original claimants.   The background is that each claimant had either walked out of the premises or failed to attend the premises on Wednesday 25th March 2020.  This was at the beginning of the original lockdown caused as a result of the Coronavirus pandemic. The basis of the claim was that the claimants suffered a health and safety detriment as a result of a deduction of pay from their failure to attend on 25th March 2020.

The respondent’s premises were allowed to remain open as an essential business.  This required two metres social distancing where possible.  The Tribunal noted that it was not their role to determine whether the health and safety measures at the time were adequate but rather to look at the issues affecting the employment of the claimants.  The respondent had conducted a series of questionnaires regarding Covid-19 as well as putting in place sanitisers, temperature checking and marshalling. Additionally, there were staggered breaks to reduce those on a break at any given time.  The Senior Local Shop Steward, at the time, stated that there were people dying and that if two metre distancing could be not be implemented then people should be sent home with 80% of their wage.   Management made it clear this was not an option as they were key workers.

For the lead claimant here he attended work on the 25th March but said that he had spoken to someone on arrival and decided to leave the premises.  He and other employees remained in the car park for much of the day. The Tribunal notes that there was a lack of social distancing from the staff who were in the car park that day.  There was no evidence of no social distancing against the test claimants here.  This led to meetings with the Union throughout the day where it was suggested that two shifts could be run to allow extra spacing.  This was not accepted and not put to the staff to ask for volunteers.  The Tribunal noted that there may well have been enough volunteers from the staff body, but it was never put to them by the Union.  Management stated that partitions would be put in over the weekend in the form of Perspex screens.  This led to most staff attending the next day.  The respondent treated the absences as unauthorised and deducted pay as a result.  This was the subject of the claim.

Outcome:

One of the issues was whether the claimants had given authority to the solicitor to issue claims on their behalf through their Trade Union. The Tribunal found that, initially, they had not but this was cured by subsequent ratification of each claimant.  On the substance, the Tribunal noted that there was a great deal of uncertainty at that point in the pandemic and there was something approaching ‘panic’.   This led to dissatisfaction with some feeling that there was little care for their safety and others wishing to have additional financial compensation.   The Tribunal noted that it was not for them to express a general opinion about the motivation of the workforce in leaving or refusing to return but rather focus on the individuals in this case.

The Tribunal noted that there was real difficulties with the evidence citing that each claimant was not credible in the evidence that they had given.  As a result, it was not shown that there was a belief of a serious an imminent risk to health and safety on the day, that the belief was reasonable and that they had left work because of that belief. Indeed, it was found that much of the evidence, on either side, was fuelled by assumption and gossip.  As a result, the claimants did not discharge the burden and the claim was dismissed.

Practical Guidance for Employers:

An interesting case stemming from the pandemic and individuals not attending work on a particular day.  The issue in the case relates to the quality of the evidence with clear deficiencies relating to how many people were standing outside and how long the claimants had stood outside.  This lack of clarity was detrimental but the case does serve as a reminder of the steps required for a health and safety detriment to be shown in terms of the reasonable belief on the part of the claimant of a serious and imminent risk.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/