Biz Extra

Published: October 20, 2021 | Updated: October 21, 2021

Gemma Murphy, Director, ViewHR, looks at a year of Covid-related employment tribunals

By Andrew Diprose, editor

When an employer and an employee (or former employee) are in dispute, the employee may state that they intend to take you to an employment tribunal to seek compensation, writes Gemma Murphy, Director, ViewHR.

Employment tribunals can be costly (even if you win, as defending yourself takes time and money), emotionally draining, and as the results are published online then they can also be bad from a reputational perspective.

At the start of the Coronavirus pandemic, it was a time of great uncertainty, and many employers found themselves having to make quick decisions in the face of a dramatically shifting business landscape, with no precedents to rely on. This unfortunately led to employment tribunals.

Here we take a look back on the year of Covid related employment tribunals:

  • The case of Katun v Winn Solicitors Ltd was heard in March 2021, and gave an indication of how the courts may interpret an employer’s actions.

Ms Khatun was not placed on furlough leave as some of her colleagues were, but continued to work. She was nonetheless told that she needed to sign a non-negotiable contract variation to give the firm the freedom to place her on furlough or to unilaterally reduce her hours and pay by up to 20%, on five days’ notice. When Ms Katun objected, she was dismissed.

The employment tribunal found that the company had “sound, good business reasons” for implementing the contractual variation, and was not premature in wanting to implement this given the effects of the pandemic on business.

However, because the employer had not consulted with the employee (merely told her that it was non-negotiable), and had not reasonably considered alternatives (when the employee had said they would be open to discussing a contract variation in the future if furlough leave became applicable), then the dismissal decision was found to be unfair.

Further Covid-related cases have been making it through the employment tribunals since then.

  • There have now been judgements in the cases of Accattatis v Fortuna Group, and Gibson v Lothian Leisure. Both of these cases relate to the question of employees protecting themselves from a serious and imminent threat to health and safety.  In both cases, the tribunals agreed that each employee had believed that Covid was such a threat.  However, the tribunals found differently regarding the reasonableness of the employers’ actions in accommodating these concerns.

In the case of Accattatis v Fortuna Group, Mr Accattatis was concerned about commuting to work, and so the employer explored a range of options including holiday and unpaid leave for times when working from home or furlough was not appropriate.  Mr Accattatis refused these options, and it was therefore found that he was not unfairly dismissed.

However, in the case of Gibson v Lothian Leisure, when the employee raised concerns about PPE and Covid-secure measures, the employer behaved with a “shut up and get on with it” attitude.

These cases have been heard by employment tribunals only at this time, and therefore may be subject to appeal.  However, as employers continue to reckon with the impacts of Covid-19, it is useful to understand how tribunals are viewing the decisions employers have made during those exceptional times.

It is notable that in both of these cases, even though the employees were found to have valid concerns, this did not in itself lead to a judgement of unfair dismissal – rather, the facts of the case were considered to determine the reasonableness of the actions of each employer.

If you would like any advice on handling the employee relations impacts of the Coronavirus pandemic, please get in touch with a member of the ViewHR team today for an initial discussion.

Gemma Murphy, Director of View HR Limited.

01425 205390