Mr G Leitch v Represented by:15 Ms L Strain – Solicitor Countrywide Estate Agents — 2021

Mr Leitch was a property valuer at the Livingstone branch of Countrywide Estate Agents. After the second lockdown in January 2021, he asked to work from home because of Covid-19 concerns and relied on Scottish Government guidance that homeworking should be the default where feasible. Ms Meighan told him that he was required to attend the office, that his launchpad access would be removed if he did not, and that his absence would be treated as unpaid leave. He returned on 8 January, later became unwell, lodged a grievance, appealed when it was not upheld, and then resigned on 26 February 2021.

The tribunal accepted that parts of the claimant's work could be done remotely, but it found that important elements of the role depended on being in the office. Those included the real-time flow of information within a small sales team, taking and passing on calls, covering lunch breaks, supporting activity days, and helping colleagues respond quickly in a fast-paced branch environment. It also found that the respondents had put Covid measures in place in the office, including distancing, masks, cleaning, and a closed-door policy, and that there was no significant evidence of non-compliance with those measures.

Applying the constructive dismissal principles in Western Excavating and the implied term of mutual trust and confidence in Malik, the tribunal held that the respondents had reasonable and proper cause to insist that Mr Leitch work from the office rather than from home. It found that the statements about unpaid leave and removal of launchpad access outlined lawful consequences rather than hostile conduct, and that the grievance and appeal decisions did not amount to a repudiatory breach. The alternative argument based on an unsafe working environment also failed because the tribunal found that the respondents had taken reasonable precautionary steps. The claim for unfair dismissal was therefore dismissed.