The Employment Rights Act says that an employee will be deemed automatically unfairly dismissed where the reason for their dismissal is that they took appropriate steps to protect themselves from danger, which they reasonably believe to be serious or imminent.
In the recent case of Montanaro v Lansafe Ltd, the Employment Tribunal considered whether an employee had been automatically unfairly dismissed for staying in Italy during the outbreak of the pandemic and refusing to return to his place of work in the UK.
The Claimant, Mr Montanaro, was employed by Lansafe to provide IT services to their clients. He thought he had sought permission to take holiday to attend his sister’s wedding in Italy. Whilst he was out there, Italy entered a lockdown and UK guidance changed.
On 11 March 2020, Lansafe wrote to the Claimant confirming that he had been dismissed because he had taken unauthorised leave and failed to follow proper processes in relation to his holiday. Lansafe sent this letter to the Claimant’s home address even though they knew he was still in Italy, so the letter was not received. Unaware of his dismissal, the Claimant continued to work as normal for Lansafe’s clients remotely and kept the company updated about the travel restrictions in Italy. On 1 April 2020, the Claimant received his P45 and a final payslip which indicated that his employment had been terminated.
Lansafe’s case was that the Claimant was dismissed for failing to get approval for his holiday and they were able to dismiss him without a process due to his short length of service. The Claimant’s case was that he had been given approval for the holiday and that the real reason for dismissal was his refusal to return from Italy due to health and safety concerns and his belief that he needed to protect himself from the danger which he believed was serious and imminent. He, therefore, bought a claim for automatic unfair dismissal.
The Tribunal ruled that the Claimant had been dismissed because he had raised concerns about the ongoing pandemic and requested to work remotely, not because he had taken an alleged unauthorised holiday. He was therefore unfairly dismissed. In its judgment, the Tribunal held that the Claimant had reasonably believed the danger of the pandemic was serious and imminent and he had taken appropriate steps to protect himself. The Tribunal also drew attention to the fact the Claimant was actively engaging with Lansafe, requesting advice and assistance on the travel restrictions, and was able and willing to continue working remotely until the situation had changed.
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