IT professional, Mr Montanaro, worked in the UK for Lansafe Ltd. Italy went into lockdown while he was there on annual leave. Unsure of whether he could travel back to the UK, he 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, which Mr Montanaro had never received, 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.
Under UK law, 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.
The tribunal found that Mr Montanaro had been automatically unfairly dismissed. 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. He had taken appropriate steps to protect himself and others and communicated about the situation in Italy to his line manager. There was no refusal to work. The dismissal letter was inaccurate. 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.
Key Action Points for Human Resources and In-house Counsel
Cases concerning refusal to attend the workplace are fact sensitive. This decision is from a first-level Employment Tribunal and is therefore not binding on future Tribunals. However, it is useful as it demonstrates that employers should be careful not to take rushed decisions if an employee fails to attend work due to COVID related reasons. Where, for example, an employee becomes stranded overseas and expresses concerns for their health and safety, employers should take a considered approach to dealing with the situation.
Employers should always consider the relevant government guidance that is available at the time, as this is a relevant (albeit not determinative) factor that 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.