Bethan Davies recently successfully represented a claimant in claims for unfair constructive dismissal, s.100(1)(d) ERA automatic unfair constructive dismissal, s.44 ERA detriment, and indirect sex discrimination.
The claimant was employed by the respondent from 25 June 2018 until she resigned with effect from 28 August 2020. The claimant was employed as a Project Management Coordinator, her role included the opening of tenders, and maintaining a tender register. The claimant is asthmatic, and used a steroid inhaler twice a day to help prevent asthma attacks, and a reliever inhaler when required. Although her asthma is relatively well controlled, she had been hospitalised on occasions due to an asthma attack, the most recent being in January 2019, and needed oxygen to assist her to breathe. In January 2019 a return to work interview had been carried out, as detailed on her HR record. None of this was passed by HR to the claimant’s manager who began his employment at the beginning of March 2020. Due to the claimant’s asthma she fell to be considered “clinically vulnerable” for the purposes of the government’s and the respondent’s guidance. Whilst she was not required to shield (i.e. was not “clinically extremely vulnerable”) her asthma placed her at a higher risk of serious adverse consequences of Covid-19; she was not more likely to catch the disease, but was more likely to be seriously ill or die. The claimant communicated this to her line manager at the outset of the pandemic and was, initially, allowed to work from home. Due to the claimant’s vulnerable status, and later limits on capacity, the claimant’s son could not attend school. The claimant’s husband worked away and her mother was shielding.
Some 2 weeks after the first national lockdown was announced, the respondent required the claimant and those working within her office to return to work on a rota system. The claimant refused to return to work, siting her vulnerable status and arguing that it was not necessary for her to work from the office; the aspects of her role which could not be completed from home were limited, and others were able to perform these tasks in her absence. The respondent refused to capitulate, maintaining that the office was safe for her to return. The claimant lodged a grievance pertaining to the necessity of her return, and thereafter the claimant was subject to a disciplinary process on the basis of her non-attendance and an email in which she informed her colleagues of her ongoing dispute with the respondent. The claimant’s grievance and disciplinary processes were dealt with separately, despite their interlinked nature. The claimant was disciplined for her non-attendance. The claimant was not provided with a personalised risk assessment prior to the request for her to return to work, with the same only being sent to her after her grievance hearing. The personalised risk assessment did not identify the claimant’s vulnerability and consequently did not engage with the risks posed by the same. Throughout this time the claimant was in contact with her non-vulnerable colleagues who expressed concern as to the safety measures that had been put in place by the respondent. The claimant was eventually signed off sick with anxiety during which time she was, in her absence, subject to an attendance process.
The claimant resigned, stating the relationship of mutual trust and confidence had been destroyed by the respondent’s unnecessary insistence she attend the office, the manner in which the grievance and disciplinary had been conducted, and the fact that she had been subject to a disciplinary process due to her refusal to attend work.
The tribunal found for the claimant on all claims, concluding that not only had she been constructively dismissed, but that there was a sufficient causative link between the claimant’s refusal to attend work and the dismissal such that the latter was automatically unfair. The tribunal further found that subjecting the claimant to a disciplinary process was a detriment for the purposes of s.44 of the ERA. Finally, the tribunal concluded that the respondent had applied a PCP of requiring staff to work in the office for some time during the pandemic, and that the same was not a proportionate means of achieving a legitimate aim as the respondent’s “unbending means of enforcement were not proportionate”.
The case adds to an emerging body of first instance decisions on section 100(1)(d) of the ERA and Covid-19. These first instance cases are, of course, fact-specific, but the judgment illustrates the need for employers to conduct adequate risk assessments for clinically vulnerable staff, prior to requesting those individuals return to the office. It is crucial that employers can show they have not simply implemented a blanket policy, but engaged with, and sought to address, the increased risk posed to vulnerable staff. A key tenant of the tribunal’s reasoning was that, rather than asking whether it was possible for the claimant to work from home, the respondent applied a blanket policy to her, closing its mind to any “creative thinking” as to how her role could be performed from home.