332: Dealing with employees who complain about inadequate PPE

In Gibson v Lothian Leisure, an Employment Tribunal has ruled that an employee who complained about a lack of PPE had been automatically unfairly dismissed under section 100(1)(e) of the Employment Rights Act 1996 (ERA), which protects employees who take appropriate steps to protect themselves or others from danger which they reasonably believe to be serious and imminent.

Mr Gibson worked as a chef in a restaurant owned by Lothian Leisure. The restaurant closed temporarily in March 2020 due to the first COVID-19 lockdown and Mr Gibson was furloughed. In the run-up to the end of that lockdown, Mr Gibson was asked to come into work to help prepare for re-opening. He was concerned about catching COVID-19 at work and passing it onto his father, who was clinically vulnerable and shielding. However, when Mr Gibson raised concerns about the lack of PPE or other precautions, his employer’s response was very negative, and he was told to ‘shut up and get on with it’. Shortly afterwards, and with no warning, Mr Gibson was summarily dismissed by a text message informing him that his employer was changing the format of the business and running it with a smaller team after lockdown. He brought various claims in the Employment Tribunal, including a claim for automatic unfair dismissal under section 100(1)(e) of the ERA.

Mr Gibson’s claim for automatic unfair dismissal succeeded. The relevant danger was the growing prevalence of Covid infections and the significant potential risks to Mr Gibson’s father. Believing this to be a serious and imminent danger, Mr Gibson had raised the issue of PPE and other precautionary measures. This amounted to an appropriate step to protect his father from the danger. Until Mr Gibson had raised his concerns, he had been a successful and valued member of staff, and nothing else had occurred during his employment to alter that position.

This case highlights the importance of taking employees’ health and safety concerns seriously and responding appropriately, particularly in the context of an increasing number of Covid-related claims being brought under the automatic unfair dismissal provisions of the ERA, and bearing in mind there is no qualifying period of service needed to bring this particular claim, nor is there any cap on compensation. Here, it appears that the employer had failed to implement Government advice regarding PPE and the decision may well have been different had they taken more precautions. It is important to note that employees may also bring whistleblowing claims in relation to health and safety concerns, but these claims will need to satisfy the public interest test. The Tribunal in this case considered whether Mr Gibson’s complaint about the lack of PPE and other precautions amounted to a whistleblowing disclosure but was not persuaded that this was a matter of public interest since his concern was only for his father.