328: Employee scared to return to work in a pandemic

Under section 100(1)(e) of the Employment Rights Act (ERA), an employee will be deemed to be unfairly dismissed if the reason for their dismissal is that they took appropriate steps to protect themselves or others from danger which they reasonably believed to be serious and imminent. In Montanaro v Lansafe Limited, an employment tribunal has ruled that an employee who stayed in Italy at the start of the pandemic due to concerns for his health had been automatically unfairly dismissed.

Mr Montanaro was employed to provide IT services to Lansafe’s clients. In March 2020, he took annual leave, which he thought was authorised, in order to attend his sister’s wedding in Italy. Whilst he was there, Italy went into lockdown and UK government guidance stipulated 14 days’ self-isolation on return from Italy, so he informed the company that he would need to stay put. On 11 March, Lansafe wrote to Mr Montanaro informing him that he had been dismissed for failing to follow company procedures and taking unauthorised leave. However, he did not receive this letter because it was sent to his home address in London. Unaware of his dismissal, Mr Montanaro continue to work for clients remotely and kept the company updated about Italian travel restrictions. However, on 1 April, Lansafe sent his P45 and final payslips by email. Mr Montanaro brought a claim for automatic unfair dismissal on the basis that he had remained in Italy due to concerns for his health and safety.

The employment tribunal held that Mr Montanaro had been dismissed because he had raised concerns about the ongoing pandemic and had requested to work remotely until circumstances changed. It rejected the company’s defence that he had been dismissed for failing to get approval for his holiday. Given the risks of catching a virus which could lead to serious illness and death, Mr Montanaro had taken appropriate steps to protect himself by working remotely. He had also communicated effectively and regularly with his employer about his situation.

This case illustrates the importance of carefully considering all the circumstances of any potential dismissal, particularly where an employee or worker has raised a concern about health and safety, and of ensuring a fair procedure and well-documented dismissal process. It is clear that employees are increasingly using the automatic unfair dismissal provisions of the ERA to bring Covid-related claims, which can be particularly useful where they lack the necessary two years’ employment to bring an ordinary unfair dismissal claim.

Mr Montanaro had only just started this job, and his employer may therefore have viewed his dismissal as relatively low risk. It is also evident that tribunals are accepting that the threat to health caused by the pandemic amounts to ‘serious and imminent danger’.