The claimant commenced employment with the respondent as an area supervisor relating to cleaning services. The issue culminating on the dismissal of the claimant arose on 30th March 2020 after the Prime Minister had announced the start of lockdown as a result of the Coronavirus Pandemic.

On 30th March, the claimant was asked by his line manager to collect cleaning equipment from a school as the respondent’s contract had ended. The line manger could not do this as she was self-isolating. The claimant responded stating that he could not collect the materials as his van was already full. He also made contact with his line manager asking if the collection was essential, considering the travel restrictions brought into effect at the time. He also asked whether it would be wise for him to deliver the items to the line manager’s house considering that she was self-isolating. At this point, the line manager became rude stating that when she tells him to do something then the claimant should do it. After about 30 minutes to an hour the claimant received another phone call from the line manager dismissing him with seven days’ notice. It was at this point that the claimant agreed to collect the items and bring them to her house. He stated this in an email which was not responded to. However, on arrival to the school it was shut, and he phoned his line manager. She said it was the claimant’s fault, she was having her dinner and she was not going to speak to him.

In his appeal against his dismissal the claimant reiterated his concerns about the line manager self-isolating and having to deliver the items to her house. Under cross-examination the claimant did admit there were no travel restrictions on him as a ‘key worker’ but that he did question whether it was essential to recover the items from the school. In light of the evidence, the Tribunal found that the principal reason for the dismissal was the fact that the claimant had raised concerns about health and safety. The Tribunal did give heed to the fact that the lockdown had only begun, and it was a period of uncertainty for employers generally but also the line manager who was only recently in post.  That being said, it did not excuse the conduct of the line manager. Accordingly, it was found that the dismissal was automatically unfair as it was principally on the basis of health and safety concerns.

Interestingly when it came to making an award, the claimant was able to show that he had applied for about 20 roles and had been unsuccessful especially when it came to driving jobs. He cited that economic suppression linked to the pandemic led to this being the case. The respondent stated that there were areas which had expanded such as supermarkets and logistics, yet the Tribunal found that the claimant had attempted to mitigate his loss and had taken into account the context of the environment in which the claimant was seeking employment.

Practical Lessons

This case yet again demonstrates the Tribunal having to deal with issues arising out of the pandemic. The ‘health and safety’ factor leading to automatic unfair dismissal is likely to arise again. In this case, it was clear that having to go to the house of someone who was self-isolating, even to drop items off, was not appropriate considering the circumstances.   The conduct of the line manager and the rudeness in her conversations with the claimant did not help matters. Therefore, this view of health and safety in light of the pandemic should be taken on board by those dealing with cases arising.
https://www.gov.uk/employment-tribunal-decisions/mr-m-ham-v-esl-bbsw-ltd-1601260-slash-2020