We have seen many companies laying off workers since the start of the Covid-19 pandemic. Many of those workers will rightfully want to know if they have a right to bring a claim for unfair dismissal. Mark Pritchard provides some guidance.
The first hurdle that must be passed in order to bring a claim is that a person needs to have employment rights. For an employee to have the right to bring a claim in unfair dismissal, in most cases, that person must have been in continuous employment for 2 years [The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012].
Assuming a person does have the right to bring a claim, the question then becomes: is it fair to dismiss an employee due to the Covid-19 pandemic?
The reasons which can amount to a fair dismissal are found within s.98 of the Employment Rights Act 1996 they are:
- The capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
- The conduct of the employee,
- The employee was redundant
- The employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.
- Some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
The act goes on to say that where a dismissal falls into one of these categories the fairness, or otherwise, of the dismissal depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.
In order for an employer to argue an employee’s role is redundant they must be able to demonstrate that the conditions laid out in s.139 of the ERA are satisfied. To do this they must show either that they intend to cease carrying on business or business at the location where the employee works, or the particular kind of work the employee carries out has ceased or diminished or is expected to cease or diminish.
If you are dismissed due to redundancy you will be entitled to a redundancy payment linked to the length of time you are employed [s.162 ERA].
If you have not been dismissed but “laid off” then you will not be entitled to such a payment outright but can apply for a redundancy payment if a careful process is followed.
Contravention of an enactment or “statutory ban”
The provisions in the Corona Virus Act 2020 and Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 mean that many businesses are prohibited from opening and therefore employees are essentially banned by statute from attending their workplace. This would therefore appear to fall squarely within s.98(2)d of the ERA. This does not mean that a dismissal for this reason will automatically be fair. The tribunal will have to consider how reasonable the employer was when dismissing the employee.
If it is possible for the employee to do their job in a different way, such as working from home, then it is unlikely a termination due to a statutory ban will be fair.
The Government has put into place several measures which all them to pay up to 80% of the wage of employees unable to attend work, to pay statutory sick pay for the employers, to reduce business rates and prevent the termination of business leases. With these measures in place an employer would have to have a very strong case as to why it is reasonable to dismiss for this reason. It would be even more difficult for a large firm with significant resources to show that the dismissal was fair.
Some other substantial reason
When an employer raises some other substantial reason as the reason for dismissal it will usually fall within the following categories
- Business reorganisation;
- Protecting employers’ interests;
- Third-party pressure to dismiss;
- Breakdown in working relations;
- Expiry of temporary contract;
Most of these reasons will not apply however it is worth exploring “breakdown in working relations” and “expiry of temporary contract” further.
One situation which has been held to amount to a breakdown in working relations is where there is a risk to the reputation of a company due to the actions of an employee. One example of this is where an employee has been accused of a criminal offence. Given the increase of media coverage in relation to Covid-19 related offences there is a real risk of people losing their employment due to falling foul of the new legislation. The recent case of Lafferty v Nuffield Health EATS 0006/19 makes the position clear that in order for an employer to fairly dismiss for this reason they must show some relationship between the matters alleged and the potential for damage to reputation, it will not be enough to dismiss merely because a person is accused of an offence.
Another situation where “breakdown in working relations” may be argued is where an employee refuses to attend work due to following government guidance telling them to do so or where their employer has failed to maintain a safe working environment. This situation is covered in more detail here [Can my employer force me to go to work if I don’t think it is safe?].
It is not always the case that dismissing someone at the end of a fixed term contract will be a fair dismissal, employers are expected to show clear evidence of a substantial reason for dismissal due to the expiry of a limited-term contract. Per Fay v North Yorkshire County Council 1986 ICR 133, CA it must be shown that the contract was adopted for a genuine purpose, which was known to the employee, and that that purpose had ceased to be applicable. So, if a fixed term contract is not renewed specifically because of Covid-19 then it would be possible for such a dismissal to give rise to a claim for unfair dismissal.
One of the main reasons which falls into the category of “other” is persistent absence from work. This can be due to ill health or any other absences.
The Equality Act 2010 provides protection to those who have a disability. A disability is something that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. Covid-19 would not fall into this category for most people due to the relatively short period it affects people.
It will still be for an employer to demonstrate that such a dismissal was reasonable. If they fail to follow a pre-existing sickness absence policy or dismiss outright for becoming unwell during a pandemic this is highly unlikely to be seen as a fair dismissal.
Employers ought to be able to demonstrate flexibility in sickness absence policies, requiring a “fit note” from a doctor during a period of time where such a note is not available due to pressure on the NHS would not be seen as reasonable.
Anyone wishing to bring a claim for unfair dismissal must do so within 3 months of dismissal.
Before a claim is brought to the tribunal an attempt to resolve the matter using ACAS should be attempted first. The 3-month limitation period is paused while ACAS deal with the claim.
Unfair dismissal claims can give rise to complex issues in law. It is advisable to seek legal advice as soon as possible.
Mark Pritchard provides advice on employment law issues as Direct Access counsel. He specialises in human rights aspects and LGBTQIA+ issues arising from employment disputes.