Dismissals during the COVID-19 pandemic
30 May 2023
The Employment Appeal Tribunal (EAT) has recently handed down two very different decisions dealing with dismissals during the COVID-19 pandemic.
Miles v Driver and Vehicle Standards Agency  EAT 62
Miles (M) was a driving examiner who was diagnosed with chronic kidney disease in 2018. Following a pause in all but critical driving tests in March 2020 due to the COVID-19 pandemic, tests were resumed in July 2020. M was required to return to work, as he was considered to be ‘clinically vulnerable’ rather than ‘clinically highly vulnerable’. The DVSA took advice and introduced several adjustments to its usual working practices, but M refused to return to work. His pay was stopped, and he subsequently resigned, bringing claims for health and safety detriment and dismissal, constructive dismissal and disability discrimination.
The employment tribunal rejected all of M’s claims. He appealed to the EAT, which also dismissed M’s health and safety claims, but it remitted the claims for disability discrimination and constructive dismissal to be reheard.
The EAT agreed with the decision of the tribunal that M did not hold a reasonable belief in a serious and imminent risk to his health and safety, taking into account government guidance at the time and material produced by Public Health England, as well as steps taken by DVSA to minimise risks. The EAT also upheld the decision that M could not pursue another of his health and safety claims because he had not raised his concerns with the employer’s health and safety committee. It rejected M’s argument that he should not be precluded from bringing the claim because the representative was not based at the same office as him.
In relation to the disability discrimination claim, the EAT disagreed with the tribunal’s finding that M’s impairment did not cause a substantial adverse effect on his ability to carry out day-to-day activities by preventing him from returning to work. The tribunal’s reasoning was inadequate to support its conclusions, so the EAT remitted this aspect of his claim to be reheard. Specifically, the employment tribunal needed to consider whether there was a causal link between M’s impairment and the adverse effect in question (his decision not to return to work). Since this may also affect the question of whether M was constructively dismissed, this claim was also remitted to be reconsidered by the tribunal.
Lovingangels Care Ltd v Mhindurwa  EAT 65
The case concerned live-in carer, Mhindurwa (M), who was dismissed by reason of redundancy in July 2020. Her request to be furloughed had been rejected by her employer. M’s claim for unfair dismissal was upheld by the employment tribunal, on the basis that a reasonable employer would have considered whether M could be furloughed as an alternative to redundancy.
The employer appealed to the EAT, which has dismissed the appeal.
The EAT held that there was no error of law in the tribunal’s decision. In any redundancy situation, an employer is generally expected to consider alternatives to dismissal. The tribunal had correctly applied the same approach to furlough as it would normally apply to any possible alternatives. It was not saying that the employer should or could have furloughed M, only that it should have considered the possibility before deciding to confirm M’s redundancy.
The Birketts view
With the COVID-19 pandemic thankfully receding into the background for most people, these decisions serve as a reminder of some of the difficult issues dealt with by both employers and employees during the pandemic. There will no doubt be other similar cases still working through the tribunal system and further appeals yet to be determined by the EAT.
In the Lovingangels case, the EAT noted that whilst the COVID-19 pandemic presented “extraordinary” circumstances, it did not require any different approach or any alteration to the legal tests to be applied when deciding a claim of unfair dismissal. The EAT said that the unfair dismissal regime is robust enough to deal with such extraordinary circumstances.
Arguably, the current health and safety regime does not adapt quite so easily. As noted by the Court of Appeal in the case of Rogers v Leeds Laser Cutting Ltd, the wording of the legislation is better suited to dangers relating to the premises, equipment or system of working, rather than the risk of being infected by a disease. It has so far proven quite difficult for claimants to establish a claim based on a breach of an employer’s health and safety duties, other than in the most extreme cases where the employer took no measures to mitigate the risks posed to its workforce.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2023.