The Claimant, Mr Montanaro, was an IT specialist who was employed by the Respondent, Lansafe Ltd, and provided services predominantly for one client. The Claimant had booked holidays to attend a family wedding in Italy in March 2020. On the first day of his annual leave Italy entered into lockdown due to coronavirus. He went to the airport for his return flight and sent his employer a message containing the government guidance regarding 14-day quarantines as well as the advice regarding not travelling out of Italy for non-essential reasons. He stated that he was confused and needed guidance about how to proceed from the Respondent. He was told to await further instructions. He contacted the client he worked for directly and was informed that they were satisfied with him working remotely which he continued to do until the 1st April when the Claimant was sent an email attaching his P45 following his dismissal.
Unbeknownst to the Claimant the Respondent had sent a dismissal letter to his UK address on 11 March. The stated reason for the dismissal was taking unauthorised holidays and not following company procedure. The Claimant was successful in bringing a claim of automatic unfair dismissal to the employment tribunal.
According to section 100(1)(e) of the Employment Rights Act 1996 a dismissal is automatically unfair, if the reason for the dismissal is based on steps taken to protect the employee or others from danger that they reasonably believed to be serious and imminent. An employee does not need two years’ service in order to make this kind of unfair dismissal claim. The tribunal accepted that the Claimant found himself in a situation where a “worldwide pandemic” had been declared and there was “a significant level of illness and deaths at the time” which represented the requisite level of danger. The tribunal also held that not flying back to the UK during this time was an appropriate step taken to protect the employee as well as others.
The tribunal also considered whether the Claimant communicated these steps to the employer. It held that the Claimant had notified the Respondent, asked them for advice and instruction, followed the instructions given and when none were given continued working for the client. The tribunal concluded that these amounted to appropriate steps. In these circumstances, the Tribunal concluded that the reason for the dismissal was nothing to do with not following the Respondent’s holiday procedure; it was because the Claimant had notified the Respondent of the dangers he was facing and because he had proposed to stay on in Italy.
The take away here is the importance of providing employees with the appropriate documentation and following proper procedure. The Respondent claimed to have dismissed the Claimant for taking an unauthorised holiday but even if this were true the Claimant genuinely believed he had taken a permissible holiday. The holiday procedure invoked by the Respondent was never provided to the employee and had an appropriate investigation been carried out this would have been made clear.
If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.