COVID-19 – Unfair and Constructive Dismissal: Your Rights
The COVID-19 strain of this deadly virus has in a matter of weeks ravaged and ripped through the global fabric of our society, affecting people in all walks of life.
Many employees will now find their jobs threatened as employers can no longer afford to maintain them when they are not ‘ open for business’.
This article seeks to assist those employees whose livelihoods are threatened and when there may be a claim for unfair or constructive dismissal against their employers.
When can action be taken by employees?
The usual time limit for issuing a tribunal claim for unfair or constructive dismissal is 3 months less one day from the termination of employment, or other event giving rise to a claim, for example, the last act of discrimination.
How long does an employer need to have worked before a claim can be made?
A claim for unfair or constructive dismissal cannot be brought in the absence of at least 2 years service, but an employee may be able to bring a wrongful dismissal claim.
What is unfair dismissal?
A dismissal in its simplest form is unfair when the employment contract is terminated at a time when the employer did not have a fair reason to do so. It can also be unfair if the employer did have a fair reason but unfortunately handled the employee’s dismissal using the wrong procedure or no procedure whatsoever.
A real risk of an employment tribunal hearing at the present time
As life in Britain adapts to the Government’s recently announced lockdown, and with so much uncertainty created by constantly new scenarios, there has never been a time like the present, when employers concerned with mere survivals, have not been fully compliant with employees rights, resulting in a barrage of cases in the tribunal against them.
There is, of course, no financial impediment restricting employees to take legal measures to protect themselves, as there is no tribunal fee for them to pay when taking their employers to court. They are therefore more likely now than ever to take legal action against their employers.
Examples of scenarios that could result in claims for unfair dismissal
Below is a list of examples of mistakes made by employers which can result in costly litigation for them, which many can ill afford in the present climate of lockdown:-
• Failure to implement the correct Furlough undertakings when planning the Government scheme, or not implementing it at all.
• Failure to introduce or implement ‘lay off’ and short term working policies, with reasons who should be laid off and why.
• Failure to vary their employment terms policy when planning for potential large scale absenteeism.
• Failure to consider different ways of working, such as a change to job roles, shifts, weekend and evening working or working remotely for example from home.
• Failure to deal with staff consultation in a transparent and regulated way to allow their worries and concerns about making financial ends meet.
Constructive dismissal is when an employee is forced to leave the job against his/ her will because of the employer’s conduct. The reasons for leaving the job must be serious, for example, the employer fails to pay the employee or suddenly demotes the employee for no reason.
Employees may not wish to travel to work
In these unprecedented times, there may be many reasons why an employee may not want to travel to work due to coronavirus.
It is necessary for the employer in these circumstances to listen carefully to the employee’s concerns and consider what options can be made available such as:-
• Remote working from home
• Taking annual leave
• Taking unpaid leave
Employers have an obligation to create a safe working environment
It is necessary for employers to reduce the risk of coronavirus infection to their employees, and not to do so could result in employees being forced to leave their job and this could be a ground for constructive dismissal.
Racism and xenophobia
Uncontrolled racism and xenophobia can also result in constructive dismissal as well as opening up actions for racial discrimination.
There have been instances of Chinese employees being discriminated at work and verbally abused as though they were the COVID -19 disease, just because this strain of coronavirus is purported to have emanated from a wet market in the city of Wuhan.
European nationals such as Italians and Spanish working in the UK in whose countries the disease has resulted in many deaths are also discriminated at work.
If employers fail to take steps to deal with the culprits instigating such xenophobia and hatred resulting in employees being forced to leave, there may be a well-founded claim for constructive dismissal against employers.
Wrongful dismissal is when an employee has been dismissed in breach of their contract, for example when the employer has failed to give notice of dismissal. It is a contractual claim for financial and other loss suffered by the employee as a result of the breach.
This article is in fact as much for the benefit of employers as it is for employees.
In conclusion, employers must implement new structures at the workplace to deal with the constantly evolving new scenarios, and must not fall into the trap of non -compliance and naivety with employment law legislation during these stressful times.