Case law updates

Automatically unfair dismissal – health and safety (COVID-19): An employee who was dismissed after leaving the workplace at the start of the pandemic saying he would stay away until lockdown had eased due to concerns over infecting his medically vulnerable children, was not automatically unfairly dismissed for taking reasonable steps to remove himself from serious and imminent danger. The tribunal rejected the argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer’s safety precautions; i.e., the pandemic in and of itself was not sufficient. Instead, the circumstances had to be judged on what was known when the relevant acts took place. In this case it was relevant that (i) the claimant had breached self-isolation guidance in his personal life the day after leaving work; (ii) he had not raised concerns with his manager about danger at work, nor taken steps to avert such alleged danger; and (iii) the employer was complying with the government’s guidance in place at the time about COVID-19 measures to be implemented in the workplace. Of course, on alternative facts, the test of serious and imminent danger may be made out, and there is likely to be more litigation on this issue in the coming months. For more details, please see the Employment Law Watch blog. [Rodgers v. Leeds Laser Cutting]

Automatically unfair dismissal – health and safety: In another case involving protection from dismissal for health and safety reasons, this time not in a COVID-19 context, the Employment Appeals Tribunal (EAT) has held that an employee who was tasked with implementing a new safety procedure and then dismissed when there were complaints about how this was carried out, was automatically unfairly dismissed. In considering its decision, the EAT took the view that health and safety activities may often be resisted or unwelcomed by staff and that it would run contrary to the protections afforded in law if an employer could rely on any upset caused by pursuing legitimate health and safety activities, or the manner in which those activities were carried out, to then fairly dismiss the person tasked with the work, provided it was done reasonably. The case reminds us that employees carrying out health and safety activities for their employer are afforded a broad protection in law. [Sinclair v. Trackwork]

Damages: In addition to actual financial losses incurred by employees who were underpaid wages, overtime and holiday pay, the High Court also awarded the claimants an additional uplift of 20 per cent as aggravated damages to compensate them for exploitation, manipulation and abuse suffered as a result of a repeated denial of their statutory rights. The company’s directors were held to be jointly and severally liable for the aggravated damages on the basis that they had induced the breach of contract. The background facts of this case are extreme, but the case acts as a reminder that there can be scope to recover (including from individual directors) more than financial loss in a pay claim, particularly where there is a known and systematic failure to pay what is properly due. [Antuzis and others v. DJ Houghton Catching Services Ltd and others]

Disability discrimination: There have been two cases this month which are helpful for assessing whether an individual is disabled for the purposes of the Equality Act 2010, looking at two different elements of the statutory definition:

• The first considered the question of when an impairment is ‘substantial’, with the EAT concluding that the statutory definition prevails over the associated guidance and EHRC Code of Practice. The Equality Act defines ‘substantial’ as “more than minor or trivial” (section 212), whereas the guidance and code go on to refer to the impairment having a greater effect than “the normal differences in ability which might exist among people”. The EAT held that the guidance and code should only be considered if the statutory definition failed to provide a conclusive answer, that the focus of the test is to look at what the individual cannot do, and that the issue should be considered in the context of the whole statutory definition of ‘disability’. [Elliott v. Dorset County Council]
• The second looked at the question of ‘long term’, and what should be taken into consideration when assessing whether the effects of an impairment had or were likely to last for at least 12 months. The Court of Appeal held that the issue must be considered and assessed by reference to the facts and circumstances existing at the time of the alleged discriminatory act(s), and anything occurring after that time should not be taken into account.  [All Answers v W & another]