Case 2502158/2020 · Employment Tribunal
Ms Nicola Bryan v Landmarc Support Services Ltd — 2021
- Case reference
- 2502158/2020
- Decision date
- 24 August 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Garnon Members
- Panel members
- Ms A. Tarn, Mr S.Carter
Parties
2 namedClaimant
Ms Nicola Bryan
Respondent
Key findings
Tribunal's reasoningMs Nicola Bryan worked for Landmarc from June 2018 until she resigned on 30 July 2020, with employment ending on 28 August 2020. She had asthma and, when the COVID-19 pandemic began, Landmarc initially told office staff to work from home. It later required her to attend the office one week in seven, and then two days a week. Ms Bryan said that attendance was unsafe for her and also said childcare was a problem during school closures.
The tribunal found Landmarc had not carried out a proper case-by-case assessment of Ms Bryan's position. It accepted that some COVID measures were introduced, but found the written risk assessment and occupational health process were inadequate and that Landmarc had effectively treated staff who were described as vulnerable but not shielding as if they had to attend unless they could prove otherwise. It found the tender-opening work could have been covered remotely or by other staff, and that the need for Ms Bryan to be in the office had not been properly explained to her.
The tribunal also found the grievance, disciplinary and attendance processes compounded the breach. It held that Mr Allport made statements about her expected attendance that were not true, that the disciplinary charge for failing to attend on 4 May 2020 was not justified, and that later attendance action was taken while the underlying health and safety grievance was unresolved. On that basis the tribunal held there was constructive unfair dismissal, and it also held the dismissal was automatically unfair under s.100 because Ms Bryan refused to return to work in circumstances she reasonably believed involved serious and imminent danger that she could not avert. It further found detriments under s.44 for the same underlying conduct.
On indirect sex discrimination, the tribunal found that requiring office attendance during the pandemic, and taking disciplinary and attendance action when Ms Bryan did not comply, was a PCP that put women with childcare responsibilities at a particular disadvantage. Landmarc had a legitimate aim in maintaining operations, but the tribunal held the way the policy was applied to Ms Bryan was not proportionate in the circumstances, including the school closures and her childcare position. Remedy was left for a later hearing.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Constructive unfair dismissal: the tribunal found a fundamental breach of the implied term of mutual trust and confidence and of health and safety duties when Landmarc required Ms Bryan to attend the office during COVID-19 without a proper individualised assessment; it held she resigned in response and had not affirmed the contract. | Upheld | — | — |
| Unfair dismissal | Automatic unfair dismissal under s.100 ERA 1996: the tribunal found Ms Bryan refused to attend work because she reasonably believed there was serious and imminent danger from COVID-19, that she could not reasonably avert, and that this was a principal reason for the dismissal. | Upheld | — | — |
| Other | Health and safety detriment under s.44 ERA 1996: the tribunal found she was subjected to detriments short of dismissal, including disciplinary and attendance processes, for refusing to return to the workplace in circumstances of perceived serious and imminent danger. | Upheld | — | — |
| Sex discrimination | Indirect sex discrimination: the tribunal held that the PCP requiring office attendance during the pandemic, together with discipline for non-attendance, placed women with childcare responsibilities at a particular disadvantage and was not shown to be a proportionate means of achieving Landmarc's aim. | Upheld | Sex | — |
Legal tests applied
12 references- Western Excavating constructive dismissal test
- s.98(4) ERA 1996
- Woods v WM Car Services mutual trust and confidence
- Berriman v Delabole Slate Company
- London Borough of Waltham Forest v Omilaju
- s.44 ERA 1996
- s.100 ERA 1996
- Essop v Home Office
- Hardys and Hansons plc v Lax
- Barclays Bank v Kapur
- Strouthos v London Underground
- Steen v ASP Packaging Ltd
Official outcome judgment PDF
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