Employment Tribunal decides that employee was unfairly dismissed when stuck abroad during lockdown.
Cases linked to last year’s lockdown restrictions are now beginning to surface before the Employment Tribunal (ET) and there has been a recent (ET) decision in the case of Montanaro v Lansafe Ltd 2021 that on its facts concluded that the employee was unfairly dismissed when he remained in Italy when Italy had its lockdown.
Montanaro (M) worked as an IT engineer for Lansafe in the UK and had travelled to Italy to attend his sister’s wedding, believing he had his employer’s permission (this was disputed by the Employer). When he was about to return to UK, Italy went into lockdown and (M) contacted his employer for guidance. He was told to wait for a response and thus did not take his schedule return flight to UK and continued to work remotely to support Lansafe’s client Boohoo who appeared to be fine with this arrangement.
A few days after the above in a letter dated 11th March 2021, (M)’s employers wrote to (M) at his London address (when they were already aware that (M) was in Italy), dismissing him with immediate effect from 6th March for failing to follow company procedures on holiday requests and thus taking unauthorised leave.
Employment Rights Act 1996
(M) was unaware of the dismissal letter and continued work remotely from Italy. He was then sent his P45 by email on 1st April, (M) thereafter brought various claims against his employer in particular one for automatic unfair dismissal under section 100(1)(e) Employment Rights Act 1996. This provides that an employee is automatically unfairly dismissed if the reason for their dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or others from the danger.
The (ET) identified several errors within the dismissal letter dated 11th March 2021, it referred to a disciplinary hearing in his absence but no disciplinary had taken place. It referred to that after numerous telephone calls and emails to (M) they still had not received any notification of the reason for his absence or his proposed return to work which was not correct as (M) had been in touch and was sitting with his laptop and mobile close at hand and the Employment Judge N Walker at clause 53 of his judgment stated “The letter bore all the hallmarks of a letter constructed for another situation in which an employee had indeed left and been uncontactable for some time. It was not applicable to the present situation”.
Employment Tribunal Decision
The (ET) concluded that employer’s evidence as to the reason for dismissal was not credible and that (M) had been dismissed because he proposed to work remotely from Italy due to difficulties posed by the world wide pandemic. With significant levels of infections and deaths thus reasonably believing that the virus posed a serious and imminent danger to him travelling. There were government declarations made under The Health Protection (Coronavirus) Regulations 2020 by the Secretary of State on 10th February 2020 formally declaring that coronavirus posed a serious and imminent threat to public health; this was relevant but not determinative (para 101) thus (M) had not refused to work and in fact had been working from Italy for the Employers customer-Boohoo who had no issue with this set-up.
This decision is by (ET) thus not binding on future Employment Tribunals but even so is an interesting outcome that emphasises the need for employers to follow a fair and proper procedure and always prudent to take HR guidance on such procedures.
Please note that this article is for information purposes only and should not be relied upon as being authoritative on the matter however further guidance on the matter can be provided by contacting our HR/legal advice-line on 01455 852028.
