The claimant commenced his employment with the respondent in June 2018 as a Compliance Assistant.   The claimant performed well receiving a promotion.  His contract of employment stated that he was to work at the Henley Office with a 3-month notice.   On 18th March 2020, the claimant approached his line manager where he was visibly distressed in relation to the coronavirus pandemic.  This related to the fact he lived with his girlfriend who was clinically vulnerable.  As a result, it was agreed that he could work from home.    

It was agreed that the claimant was able to work from home successfully and there were no issues raised with his performance. From 23rd March 2020, the Government issued an instruction that all individuals should work from home except key workers.   The respondent took the view that their employees were critical workers as they were in financial services.   Most employees, however, did work from home.  In April 2020, the respondent held a board meeting which recorded that it whilst home working was a success they were keen to get staff back into the office.   This was based upon some issues arising such as difficulty with broadband at home, staff having to home school and that files had been misdirected leading to £10,000 being given in compensation.  A phased return was announced with the claimant being placed into ‘Phase 3’ due to his girlfriend being clinically vulnerable.  The date of return to office was to be announced. 

There were a series of health and safety reports.  However, the individual appointed was related to managerial staff in the respondent rather than employees having an input into the choice.  The health and safety report outlined a number of mitigations to be taken.  This included bubbles yet there was a photo of an office party in which these rules were broken.  In July 2020, the claimant had a discussion with a manger about his return to work.  He stated he was extremely anxious about it.  He emailed stating he had a change of heart about returning to the office stating that he could work from home and that the Government guidance still suggested that those who could work from home, should. The response received was that he could look to live separately from his girlfriend or take his annual leave.   This stand-off continued with the respondent stating that if the claimant failed to return that disciplinary action could be taken.  The disciplinary process took place with Ms Ruston overseeing it despite the fact that she had been involved in the exchange with the claimant.  The claimant sought to have the disciplinary hearing date changed as his companion was unavailable.  This was refused and in his absence the decision was made to dismiss the claimant for gross misconduct. The claimant brought an internal appeal which was rejected.  The claimant brought a claim for unfair dismissal. 

The claimant argued that it was automatic unfair dismissal on the basis that the reason for the dismissal was that he had raised health and safety concerns.  The ground being under Section 100(1)(d) that he had been dismissed in circumstances of danger where he reasonably believed them to be serious and imminent so he could not return to his place of work.   The Tribunal determined that it was reasonable for the claimant to assert that he should work from home and that he was taking appropriate steps to protect himself and his girlfriend. The Tribunal also found that even if it were not automatically unfair, it would be ordinary unfair dismissal as the respondent did not show there was a fair reason for the dismissal and their decision was outside of the range of reasonable responses.  

Practical Lessons

The return to office during the coronavirus pandemic has been a long debated issue.  In this case, it demonstrates the need for employers to be cognisant of the employee’s particular issues as well as the Government guidance that was in place at the time.  As a result, it could lead to a dismissal being automatically unfair as the employee is avoiding a serious and imminent risk (that being the transmission of Covid-19).  The fact that the work was successful at home was also a factor that had to be considered as to whether it was reasonable to request that the claimant be physically present in the office at that particular time.  
https://www.gov.uk/employment-tribunal-decisions/mr-n-quelch-v-courtiers-support-services-ltd-3313138-slash-2020