Quelch v Courtiers Support Services Ltd

What happened?

An employee asked to follow government guidance and work from home in March 2020, especially important because his girlfriend was extremely vulnerable medically. This was agreed and his line manager reported that the situation was working well. In May 2020, however, the company announced that employees would be expected to return to work on a phased basis over the following few months. Mr Quelch was expected to return in July. He emailed his employer on 1 July explaining that he was “extremely anxious” about his proposed return to the point whereby his mental health and that of his girlfriend were being negatively affected.

His employer insisted that they could not make an exception for him and told him that if he did not return, he would have to take annual leave or sick leave or else face disciplinary action. When he did not return to work, his employer disabled his systems access and placed him on unpaid leave. Although he remained ready and willing to work from home, he was dismissed for gross misconduct on the basis that he refused to follow a reasonable management instruction.

The Hearings

The tribunal held that Mr Quelch had been automatically unfairly dismissed because he found himself in circumstances of danger which he “reasonably believed to be serious and imminent” contrary to section 100(1)(d) and (e) of the Employment Rights Act 1996. The tribunal found that although the pandemic did not in itself amount to “circumstances” of serious and imminent danger, Mr Quelch had legitimate concerns in relation to the company’s risk assessment and failure to follow the guidance at the time.

Take-away points

• This follows other first instance decisions that the existence of the pandemic in itself is not enough to amount to “circumstances of serious and imminent danger”. However, tribunals will consider cases where employees are forced to return to workplaces against government guidance and when adequate health and safety safeguards are not in place.
• This case highlights the importance of recognising government guidance and communicating with employees.

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