Employee found to be automatically unfairly dismissed on health and safety grounds (Mr M Ham v ESL BBSW Ltd –1601260/2020)
In the case of Mr M Ham v ESL BBSW Ltd 1601260/2020 the Employment Tribunal held that the claimant was automatically unfairly dismissed and should be awarded £16,640 in compensation.
The facts in Mr M Ham v ESL BBSW Ltd
On 1 November 2019 Mr Ham commenced employment with ESL BBSW Ltd (“ESL”) as an area supervisor on a gross salary of £16,640.
On 9 March 2020 Ms Kocinska was appointed by ESL as regional manager and, further, as Mr Ham’s line manager.
On 16 March 2020 the Prime Minister addressed the nation to state that due to the Covid 19 pandemic all non-essential contact and travel should cease, and on 23 March 2020 the Prime Minister announced a lockdown and stated that other than those not required to do otherwise, should ‘stay at home’. On 26 March 2020 the Coronavirus Act 2020 came into force, making lockdown enforceable by law.
On 27 March 2020 Ms Kocinska emailed a client of ESL’s to inform them that she was self-isolating at home due to suspected COVID symptoms and that she would remain there for a further week. Ms Kocinska also emailed Mr Ham that day, asking him to visit the client. Mr Ham visited the client but refused to deliver goods from the client to Ms Kocinska, arguing that this would amount to a health and safety violation.
After a number of telephone calls between Ms Kocinska and Mr Ham she dismissed him on 30 March 2020 for failing to follow her instructions.
Despite having dismissed him, on 1 April 2020 Ms Kocinska asked Mr Ham to carry out a task at the same client but Mr Ham declined, as his understanding was that he had already been dismissed from the job.
On 2 April 2020 Ms Kocinska wrote to Mr M Ham to confirm her decision of the 30 March 2020 that he was to be dismissed – she confirmed that her belief was that he had failed to follow reasonable management instructions and that he had displayed a ‘poor and inappropriate attitude on a follow-up call’.
Mr Ham appealed against his dismissal on 3 April 2020, and on 17 April 2020 an appeal hearing was held in front of Ms Gower via telephone – this resulted in Mr Ham’s appeal being rejected by Ms Gower as of 23 April 2020.
On 17 April 2020 an appeal hearing was held with Ms Gower appointed as hearing manager via telephone and recorded.
Mr Ham subsequently brought a claim for automatic unfair dismissal to the Employment Tribunal, arguing that he had been dismissed for raising legitimate concerns over his health and safety at work (in being asked to load and unload his van at Ms Kocinska’s house, where she and her daughter were isolating with suspected COVID symptoms).
The decision of the Employment Tribunal
The Employment Tribunal held that Mr Ham had been automatically unfairly dismissed from his employment, as he had been dismissed by ESL for raising, by reasonable means, circumstances of danger which he reasonably believed to be serious and imminent, and took appropriate steps to protect himself from danger.
The Employment Tribunal awarded Mr Ham one year’s gross salary (£16,640) as compensation for the termination of his employment.
Our lawyers’ view on Mr M Ham v ESL BBSW Ltd
Stephen Norton, a legal adviser at Redmans, commented on the case: “In this case the employee was rightly concerned about his own health and safety during the height of the COVID pandemic where many were becoming dangerously ill, and several dying before the later success of the vaccine programme. The employment tribunal found that the claimant in this case had been dismissed not because of performance concerns which the employee had retrospectively attempted to introduce as a reason for dismissal, but because the claimant had raised legitimate health and safety concerns in the workplace. Employers should be careful to treat such complaints carefully, otherwise they may face successful Employment Tribunal claims.”