Mr James Dunbar -v- Abellio London Ltd 2307750/2020 

The Claimant, Mr Dunbar, claimed that he was unfairly dismissed on 24 July 2020. As he did not have the requisite two years’ ‘qualifying period’ of employment, he claimed automatic unfair dismissal contrary to ss. 100(1)(d) and (e) Employment Rights Act 1996 (“ERA”). Mr Dunbar claimed he was dismissed for not returning to the workplace following a period of “furlough”, due to concerns about contracting coronavirus – i.e. because he was refusing to work in unsafe conditions. The Respondent was Abellio London Bus Company.

Louisa successfully persuaded the Tribunal that: as a matter of law, s. 100(1)(e) ERA does not apply to a claim which relates to refusal to return to the workplace; and that whilst there were “circumstances of danger” created by the pandemic and coronavirus, the Claimant could have “reasonably averted” that danger, by following government guidance at the time of socially distancing, wearing masks and washing hands – therefore the “danger” did not persist, when he refused to return.

It was held that the fact the Claimant did not feel these would have been sufficient cannot be the responsibility of the Respondent. The reason for dismissal was therefore not refusing to return to work while a danger persisted (as it could have been averted), but unauthorised absence. As such, Louisa was successful in having the claim dismissed.

Louisa’s full profile can be found here.