First COVID-19 Employment Judgement Released
Key Contact: Claire Knowles
Author: Mark Alaszewski
It is fair to say that there has been a lot of legal commentary and speculation arising from the Coronavirus pandemic and subsequent lockdown. What there has been a definite lack of is certainty. Particularly those cold, hard legal judgments that can give an adviser the reassuring feeling that their opinion is securely grounded in judicial authority.
Congratulations then to the Employment & Equality Tribunal of the Isle of Man who have returned the first COVID 19 judgement that we are aware of. Given that the dismissal in question occurred on 31st March 2020 and the Claimant only issued her claim on 23rd June 2020, this is an impressive feat.
The case concerned the Claimant Ms Reid who was employed in the Good Health Store on the Isle of Man. She has the condition Type 1 Diabetes and lives with her elderly husband. On 17th March 2020, during the early days of the pandemic, Ms Reid understood that she might have to self-isolate for 12 weeks and contacted her employer to ring in sick. Thereafter she visited her GP who advised that she should self-isolate, initially for a 14-day period.
On 31st March 2020 Ms Reid met with her employer to advise that she now felt safe enough to return to work. However, her employer reacted negatively to this and subsequently stated that she understood that Ms Reid had resigned by failing to attend work on 17th March 2020.
Ms Reid claimed unfair dismissal in relation to the loss of her job and unlawful deduction from wages in relation to her notice pay. She succeeded on both counts. In respect of the dismissal the tribunal found that Ms Reid had not resigned (as a matter of fact) and therefore that her dismissal had to be procedurally unfair.
It also found that her dismissal was substantively unfair as Ms Reid’s actions had been reasonable at all times and those of her employer had not. Whilst, with the benefit of hindsight, there was no strict requirement for Ms Reid to self-isolate on 17th March 2020, it was reasonable for her to do so given the febrile atmosphere at the beginning of the pandemic amidst the confusing and oftentimes contradictory advice provided by government.
It would, of course, be entirely wrong to extrapolate any wider patterns from what is a first instance decision from a local tribunal. However, if the case shows anything it is that employers should be extremely cautious when dealing with COVID 19 employee issues. Employment tribunals are likely to have considerable sympathy with employees trying to navigate the myriad of personal difficulties and dilemmas caused by COVID 19 and lockdown. Any decision to dismiss an employee for a COVID 19 related reason should therefore be taken with extreme caution and as a last resort.
For advice around COVID 19, lockdown or any other employment issue, please contact our employment team.
Claire Knowles – Partner
Mark Alaszewski – Associate
Rebecca Mahon – Solicitor
Adam McGlynn – Trainee Solicitor