D-BRIEF – Employment & Pensions Blog: Gibson v Lothian Leisure: dismissals relating to health and safety of COVID-19

An Employment Tribunal has found that an employee was unfairly dismissed for raising health and safety issues with their employer about a lack of PPE and other workplace COVID- secure measures, during the COVID-19 pandemic.

The Claimant, Mr Ben Gibson, was employed as a chef based at the Sun Inn and began his role in February 2019, in which he was successful and latterly promoted. During the first national lockdown due to the Covid-19 pandemic in March 2020, the Claimant was placed on furlough by his employer and before this point had experienced no workplace issues. At this time the Claimant’s father, who suffered with a number of serious medical issues, was following Government guidance to shield.

During April 2020, the employer was looking to re-open the restaurant and wanted the Claimant to come back to work. The Claimant then raised some concerns about the possibility of his father catching COVID-19 from him due to his return to workplace. The Claimant asserted that the employer failed to provide any personal protective equipment for staff, and that they had no intention of requiring staff to take any COVID-19 precautions or to create a COVID-safe working environment. In response to the concerns being raised, Mr Gibson was told to “shut up and get on with it”.

The employer’s attitude towards the Claimant became negative and the employer proceeded in terminating the Claimant’s employment with immediate effect, without any discussion or any process being adhered to. The employer failed to pay him any notice pay or accrued holiday pay and insisted that the dismissal was due to the fact that the employer was changing the format of the business and would be running a smaller team after the lockdown period (a redundancy situation).

The Employment Tribunal found that Mr Gibson had been unfairly dismissed because the Claimant had taken steps to protect his father’s health in what he reasonably believed to be circumstances of serious and imminent danger. The circumstances of danger was the COVID pandemic and the potential harm to Mr Gibson’s father who was clinically vulnerable.

Comparison to Rodgers v Leeds Laser Cutting Ltd
In the case of Rodgers v Leeds Laser Cutting Ltd, which you can find our previous article on here, the Employment Tribunal ruled in favour of the employer in a case on similar facts. However, one of the core differences between the two cases was that in Rodgers v Leeds Laser Cutting Ltd the employer had taken steps to comply with the government guidance in respect of social distancing, hand washing and the provision of masks but the employer in Gibson v Lothian Leisure took no such action.

Whilst this ruling has come out of the Employment Tribunal and is not binding (and could be the subject of appeal) it is an indication of how Tribunals will consider cases if employers have failed to take steps to ensure the health and safety of staff.  It is also another example of how important it is for employers to follow the correct procedures when they are looking to dismiss employees. In this case Lothian Leisure perhaps mistakenly believed they could dismiss Mr Gibson on redundancy grounds without a process because he had less than two year service however as protection against dismissal in the case of serious and imminent danger is a day 1 right, he was able to challenge this.

For more information on the managing discrimination issues within the workplace, please contact a member of the Employment Team.

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