Covid case law

At the height of the covid pandemic, new laws were being introduced at a rapid rate and employers were having to make difficult decisions about what they could lawfully do. We are now starting to see a number of these issues come through the appeal courts, with decisions whose reasoning might not be limited only to covid cases

In Ritson v Milan Babic Architects Limited, the Claimant had less than two years’ service, but claimed that he had been unfairly dismissed as a whistleblower. His claims failed at the Tribunal and at the EAT as he was found not to have made protected disclosures.

The Claimant had produced text messages in which he told his manager that he should not be working whilst on furlough. He stated: “There is no option to continue working under the job retention scheme and if we break the rules and HMRC find out you risk having to pay back all of the grant money that they will give you for wages. Surely it's not worth taking that risk when you have self employed people that are still able to work during this time without it causing any problems”. 

His manager indicated that if he wanted to take that stance, that was fine, but that when having to make decisions, he would “look after the staff who are looking after my business first”. 

The Claimant was subsequently made redundant and alleged that this was because he had disclosed concerns about being asked to work whilst on furlough leave.

The ET and EAT found that he had not made protected disclosures, and their reasoning is a useful reminder that not every complaint by an employee is a protected disclosure. The Tribunal needs to examine each element of the definition of a protected disclosure and, in this case, the Claimant failed to establish that he had made a protected disclosure because:

• He had not established that the disclosure was in his reasonable belief in the public interest. The EAT concluded that the ET had applied the correct test: asking first if the Claimant believed the disclosure was in the public interest and, if he did, whether it was objectively reasonable for the Claimant to consider that the disclosure was in the public interest. The Tribunal had concluded that the Claimant only had his own interests in mind when making the disclosure
• He had not established that he believed that his employer was “likely” to fail to comply with a legal obligation. The fact that the Claimant believed that his employer might breach the furlough rules was not sufficient.

In Masiero & Ors v Barchester Healthcare Ltd, the EAT considered a case (of which there have been a few) of dismissals for failures to comply with an employer’s covid vaccination policy. The employer is a large provider of care home services and, after consultation with staff, unions and residents, and with assistance from a professor of molecular virology, introduced a mandatory covid vaccination policy (save for the medically exempt). The Claimants were dismissed for failing to be vaccinated and brought claims for unfair dismissal.

Their claims failed in the Employment Tribunal and the Employment Appeal Tribunal. The EAT found that the Tribunal had carried out the correct balancing act, considering all relevant factors:

• The disadvantage to the Claimants of the requirement
• The employer’s stated consideration of the care home residents’ right to life
• The views of the trade union
• The significant number of employees who had accepted the new requirement
• The fact that employees had not been forced to be vaccinated

This was a case in which the employer had given appropriate thought to the various factors and, in the ET and EAT’s view, it had not been outside the range of reasonable responses to dismiss the Claimants.

In Knight v Off Broadway Ltd , the EAT considered the issue of carry over of holiday under the covid provisions. 

Amendments were made to the Working Time Regulations 1998 to enable workers to carry forward holiday where it was not reasonably practicable for them to take their holiday as a result of the effects of coronavirus (including on the worker, the employer or wider economy or society).

The Claimant in this case was a bar manager. During the pandemic, the bar temporarily changed to a takeaway, with all staff other than the Claimant furloughed. After being dismissed, the Claimant claimed for accrued but untaken holiday pay, including seeking to carry forward holiday from the previous holiday year on the basis that he had been unable to take leave due to the pandemic. The ET and EAT rejected his claim on the basis that he was the bar manager and was master of his own time. He had not proved that it was not reasonably practicable to take holiday in the period when the business returned to a more normal bar operation (albeit still with some covid-related restrictions) in the period prior to the end of his holiday year.

However, the EAT remitted back to the Tribunal the question of whether the Claimant was entitled to carry forward the holiday because his employer had not ensured that he had the opportunity to take holiday (eg by informing the Claimant that holiday would be lost if he did not take it). This is a reminder to employers of the new provisions that came into force on 1 January 2024 codifying the previous EU case law and clarifying that workers can carry forward unused holiday where the employer fails to:

• Recognise a worker’s right to take holiday; or
• Give the worker a reasonable opportunity to take their leave or encourage them to do so; or
• Inform the worker that any leave not taken will be lost at the end of the leave year.

Employers should ensure they have systems in place to fulfil these requirements.