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Chef wins unfair dismissal case for raising concerns about returning to work because of shielding father

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Gibson v Lothian Leisure, Mr Gibson, a chef, was furloughed when the first national lockdown began. During his furlough and in the run-up to the end of lockdown, his employer asked him to come into work. Mr Gibson was worried about catching COVID-19 and passing it on to his father who was clinically vulnerable. When he raised concerns about the lack of PPE and a non-secure COVID-19 working environment, his employer summarily dismissed him via text message, with no notice or accrued holiday pay. He brought various tribunal claims, among them one for automatic unfair dismissal.

The Judge considered the two key questions:

  1. Was Mr Gibson’s perceived risk of contracting Covid-19 serious or imminent?
  2. Did Mr Gibson reasonably believe that he would not be able to avert this danger?

The tribunal judge found that Mr Gibson did perceive the risk of contracting Covid -19 serious and imminent, due to the detrimental impact it would have on his father’s health if he caught it. Mr Gibson had reasonable grounds to believe that he would not be able to avert the danger, due to the employer’s “robustly negative” response to him raising his concerns.

Mr Gibson’s claim for automatically unfair dismissal was successful. He was also successful in his claim for unpaid notice pay, holiday pay, and unlawful deductions, due to his employer failing to pay his full amount of furlough pay.

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