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Employment Tribunal cases considering the risks posed by the COVID pandemic

Nick Murrell discusses two non-binding employment tribunal decisions concerning measures to protect pregnant workers during the pandemic and the dismissal of an employee who refuses to obey a management instruction due to COVID-related risks being automatically unfair.

Pregnant zero hours worker

In the case of Prosser v Community Gateway Association Ltd, Ms Prosser was a pregnant zero hours worker who was sent home at the beginning of the COVID pandemic as she was seen to be clinically vulnerable by her employer. Her employer carried out a risk assessment and implemented social distancing measures which delayed Ms Prosser's return to the office. During her absence, she was paid 'generously' in excess of her contractual entitlement (though one payment was mistakenly made late, but not because of her pregnancy).

Upon her return, Ms Prosser was informed that her rota would not include night or responder shifts, as such shifts involved working alone, travelling to tenants' homes alone, and physical contact - such elements of the night shift work were considered unsafe for her as a pregnant worker.

Ms Prosser brought claims of discrimination and victimisation, which were dismissed by the tribunal which held that her treatment had been appropriately informed by the available public health advice and COVID regulations at the time.

Unfair dismissal - health and safety concerns

In the case of Ham v Esl Bbsw Ltd, Mr Ham worked for a cleaning service and was asked to collect equipment from a client and deliver this to his manager's home, while his manager and his manager's daughter were self-isolating with COVID-19 symptoms. Mr Ham queried whether this was essential and suggested leaving the equipment with the client until a later date. He was subsequently dismissed and brought a claim for automatic unfair dismissal on health and safety grounds.

The Tribunal found that in querying the management instructions he had been given he had expressed concern for his and his family's health. The Tribunal concluded that as his dismissal was for the principal reason that he had raised health and safety concerns and was automatically unfair under section 100(1)(c) and (e) of the Employment Rights Act 1996.

Considerations for employers

Decision two in particular highlights the need for employers to engage with and understand any health and safety concerns raised by employees, to consider whether there are any alternatives that might reasonably be considered and to act reasonably in discussing these matters with staff.

Nick Murrell is an associate at VWV.