We are currently in a position where cases and appeals related to the COVID-19 “Lockdown” are being determined. One such case is that of Goldstein v Herve.
The EAT agreed that the employment tribunal was entitled to uphold claims of health and safety detriment and dismissal. In this case, the health and safety element involved the claimant’s concerns about attending the workplace during the COVID-19 pandemic. She refused to return to the workplace during the second national lockdown in November 2020.
The EAT upheld the tribunal’s finding that the claimant’s claim for automatic unfair dismissal for health and safety reasons under s44(1)(C) ERA 1996 was successful. The claimant had raised concerns regarding risks to her health posed by in-person attendance at work during the COVID-19 pandemic. In refusing to return to work, the tribunal agreed that the claimant had taken an appropriate step to protect herself or others from circumstances of danger that she reasonably believed to be serious and imminent for the purpose of S.44(1)(e).
The claimant worked as a personal assistant at her employer’s family home. In March 2020, during the first national COVID-19 lockdown, the claimant worked remotely as her partner was considered a “high-risk” individual. Initially, the Claimant and her employer were able to agree a hybrid-working schedule to minimise the claimant’s presence in the workplace and assist avoidance of public transportation.
On 4 November 2020, when the second national lockdown was announced and set to begin on 5 November 2020, the claimant informed her employer that she would be working from home the following day in accordance with government guidance.
The claimant’s employer responded requesting the claimant return to work as normal as the support he was receiving suffered as a result of the claimant working from home. The claimant commenced sick leave on 10 November 2020 and resigned on 12 November, following which she brought numerous claims against her employer in the employment tribunal.
The tribunal upheld the following of the Claimant’s claims: -
- Health and safety detriment under S.44 of the Employment Rights Act 1996
It was found that the claimant genuinely held belief of serious and imminent danger posed by the risks of using public transport and the employer’s self-confessed poor use of masks and social distancing, amounting to a successful health and safety detriment claim.
- Automatic unfair dismissal for health and safety reasons under S.100 ERA;
It was found that the employer breached the implied term of trust and confidence which gave rise to an automatically unfair dismissal.
- Unfair dismissal under S.98 ERA.
The tribunal found that the employer had incorrectly interpreted the government guidelines, and in turn had criticised the claimant due to the inconvenience the restrictions placed upon him, and his actions gave rise to a case of constructive dismissal.
The employer appealed this decision. The appeal was dismissed and the EAT held that the tribunal had been entitled to find that the health and safety concerns expressed by the claimant were ‘connected with’ her work for the purposes of S.44(1)(c). The tribunal also found that the claimant reasonably believed that the circumstances related to her work were harmful or gave rise to serious imminent danger. Finally, the EAT upheld the tribunal’s finding that the employer breached the implied term of trust and confidence and gave rise to an automatically unfair dismissal under S.100(1)(d) ERA.
This case demonstrates the liability employers can face if they do not adhere to their duty to ensure the workplace is safe for all workers. At a time of enormous uncertainty, the EAT held that the employer should have followed government guidance and err on the side of caution in the case of employee safety.