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In the recent case of Montanaro v Lansafe Ltd ET/2203148/2020, an Employment Tribunal has decided that an employer had unfairly dismissed an employee who had remained in Italy at the outbreak of the pandemic.
Under current employment legislation, an employee is automatically unfairly dismissed if the reason (or, if more than one, the principal reason) for their dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or others from the danger.
In our previous update, we looked at the recent case of Rodgers v Leeds Laser Cutting Limited, in which an Employment Tribunal decided that an employee could not rely on health and safety reasons in an automatic unfair dismissal claim “to refuse to work in any circumstances simply by virtue of the pandemic”. This was because the very existence of COVID-19 does not inevitably create a serious and imminent danger in the workplace which cannot be avoided.
Mr Montanaro was an Italian IT professional, who worked for a computer specialist company, Lansafe Ltd, in the UK.
Before his dismissal, Mr Montanaro had travelled to Italy to attend his sister’s wedding, believing he had his employer’s permission to take annual leave. The evening before Mr Montanaro was due to return to the UK, Italy went into a lockdown due to COVID-19. The guidance from the Italian authorities was to stay at home but travel for work purposes was permitted. UK government guidance required 14 days' isolation on return from Italy.
Due to the unique situation in Italy, Mr Montanaro was unsure whether the Italian authorities would allow him to travel without further documentary evidence from his employer. Mr Montanaro explained the situation to his employer and was asked to wait for further instructions. No further instructions were given despite Mr Montanaro contacting his manager. He continued to work remotely and only discovered he had been dismissed on 1 April 2020, when an email was sent to him which referred to his dismissal.
A dismissal letter dated 11 March 2020 was later presented to the Tribunal, but Mr Montanaro said he had never received it. The letter referred to unauthorised absence and said that Mr Montanaro had not been in contact with his manager or provided reasons for his absence. The employer did not invite Mr Montanaro to a disciplinary hearing before dismissing him.
The Tribunal agreed that in this case the outbreak of Covid-19 pandemic presented circumstances of danger, with a risk of serious illness or death. Due to the declaration of a worldwide pandemic and the significant levels of infections and deaths at the time, Mr Montanaro had reasonably believed the virus to be a serious and imminent danger that could be avoided.
The Tribunal agreed that there had been no refusal to return to work by Mr Montanaro, rather he was prepared to work remotely until further instructions and would have been willing to return to the UK had he been told to do so. He had asked for assistance from his manager with documentation for his travel back to the UK. The Tribunal concluded that Mr Montanaro had taken appropriate steps to protect himself and others and communicated about the situation in Italy to his line manager.
The Tribunal also found the reasons for Mr Montanaro’s dismissal in the 11 March 2020 letter inaccurate and irrelevant to Mr Montanaro’s circumstances, and did not consider the dismissal letter to be credible evidence. Given that the employer failed to provide any adequate reasons or evidence that the employee had committed a fundamental breach of contract to allow dismissal without notice – the Tribunal found that the employee had been automatically unfairly dismissed. The Tribunal concluded that Mr Montanaro had been dismissed because he had communicated the difficulties posed by the pandemic and proposed to work remotely from Italy until circumstances changed.
This case demonstrates how fact-sensitive these cases are. The Tribunal in this case agreed that the outbreak of Covid-19 pandemic presented circumstances of danger, with a risk of serious illness or death and that the employee took appropriate steps to protect himself in the circumstances he found himself in.
In contrast to the employee in the Rogers case covered in our previous update, where the employee refused to attend the workplace at all “until the lockdown eased”, the employee in this case was willing to continue working and had not refused to return to the workplace. There was also evidence that once the UK went into lockdown, the relevant clients of the company had agreed to remote working and therefore there were no real barriers for the employee to perform his duties remotely.
The case also demonstrates that employers should be careful not to take rushed decisions if an employee becomes stranded overseas and expresses concerns for their health and safety, and should take a considered approach to dealing with the situation.
It is important that employers follow and take into consideration the relevant government guidance that is available at the time, as these are relevant (albeit not determinative) factors the Tribunals will take into consideration.
The case also highlights the importance of having clear rules and procedures in place for annual leave and remote working and making employees aware of these from the outset to avoid misunderstandings.