Mr G Gibson v Limited (in Liquidation) — 2021

The claimants brought claims that they had suffered detriment under section 44(1)(d) and (e) ERA after staying away from work during the Covid-19 pandemic, and claims of constructive unfair dismissal. The tribunal accepted that the claimants had concerns about the pandemic and its possible impact on family members with asthma, but found that before 7 April 2020 their concerns raised with the respondent were about whether the business was essential and whether they should be furloughed, rather than specific health and safety concerns about the workplace measures.

The tribunal found that the respondent's workplace was large, well ventilated, and had few employees, with workstations spaced far apart. It found that the respondent had carried out a risk assessment and put measures in place addressing social distancing, customer contact, handwashing, PPE, and other matters. The tribunal concluded that the claimants did not reasonably believe there were circumstances of serious and imminent danger. It also found, in any event, that they could reasonably have been expected to avert any dangers by following the guidance then in place, and that it was not appropriate for them to absent themselves entirely without raising specific complaints about the measures adopted.

For constructive dismissal, the only act relied on was the respondent's failure to pay the claimants for 7 April to 1 May 2020. The tribunal found that the claimants had affirmed their contracts by requesting annual leave, accepting holiday pay, reporting later self-isolation, and accepting SSP. It also found that the failure to pay was not a repudiatory breach because the claimants had not attended work and had no contractual or legal entitlement to pay for that period. The claims were dismissed.