Unfair dismissal due to Covid 19 / Coronavirus

This short guide is about unfair dismissal and Covid 19. You can also read an overview of your general coronavirus employment rights here, or access our free coronavirus legal letters here.

Can I be dismissed for self isolating and not coming into work?

If you are dismissed for self isolating due to coronavirus then this would probably amount to automatically unfair dismissal under s.100 Employment Rights Act 1996 which relates to health and safety dismissals.

This applies whether or not you or someone in your household are vulnerable. So even if you are completely healthy and so is everyone in your household, then it would be illegal for your employer to dismiss you for self isolating. Your employer might be allowed to discipline you, but not to dismiss you.

s.100 ERA 1996, ss (1) d & e, states:

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

There is no minimum length of service either, so even if you’ve been employed for under 2 years is still unfair dismissal.

Try to take some photos of your work or other evidence, if there are people within 2 metres of each other. It is the health and safety of the work place which you may need to show is risky.

 

In any claim against your employer you would need to show that you self isolated because you believed there was a danger to yourself or others from Covid 19, and that was the reason why your employer dismissed you.

There is a case on this area of law too too, called Harvest Press Ltd & McCaffrey 1999 ILRL 778 which predates coronavirus but is still relevant regarding health and safety dismissals.

See also our article for an overview of what unfair dismissal means and the practical implications for employees of being unfairly dismissed generally (in normal, non-covid-19 circumstances).

 

Next steps

If this applies to you then you should ask your employer to re-employ you and either put you on full pay or on the Coronavirus Job Retention Scheme for employees who are laid off or on furlough leave (the 80% government backed wage).

If you have tried this already and your employer refused, then contact us for a free consultation.

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