Making workplaces Covid secure has been a key priority for workplaces that have remained open during the pandemic.

Once we know when Scottish office-based workers can return, similar considerations will apply. But what happens if an employee refuses to return to work because of health and safety concerns around Covid? Or refuses to wear a face mask? How should employers handle these situations?

The first employment tribunal cases dealing with workplace Covid issues are starting to emerge.

In one of the first cases, an employee contacted his employer in March 2020 to say he did not want to return to work until lockdown had ended because of concerns about catching the virus and the impact this would have on his sick child. He was dismissed and claimed that his dismissal was automatically unfair for health and safety reasons.

This type of claim is a special category of an unfair dismissal claim where an employee argues that they faced “serious and imminent danger”. Although the employment judge accepted that conditions relating to Covid-19 could potentially amount to circumstances constituting serious and imminent danger, they concluded that the facts of this case did not support that finding.

In coming to this conclusion the judge said it was relevant that the employer operated a large manufacturing workplace with a small number of staff, where Covid secure measures had been put in place and for majority of the time, staff were able to socially distance from each other. In addition, the judge highlighted that the employee had not discussed his safety concerns with his employer; he had simply texted his boss telling him he wasn’t coming in until lockdown was over.

Employers who are told by employees of their concerns should take these issues seriously. When responding they should try to reassure employees about the nature and extent of Covid secure measures in place and if necessary, make further changes to deal with individual concerns. Unlike ordinary unfair dismissal claims, employees can bring a “serious and imminent danger” claim where they have less than two years of service, and compensation is potentially uncapped. So, it’s a high risk area for employers to get wrong.

In another Covid-related case, a driver was dismissed for refusing to wear a face mask in the cab of the lorry he was driving while on a client’s site. He challenged his dismissal as being unfair but lost his claim.

The client’s policy was to ensure all visitors to the site wore masks. When the employee refused to wear one, the client banned the employee from returning to the site putting the employer in a difficult situation with their client.

This case is not authority for the position that a one-off incident where an employee refuses to wear a face mask will justify the employee being dismissed; here the client dynamic was very important. Instead employment tribunals will look at all of the circumstances, such as any policy the employer has in place, the employee’s reason for the refusal, the type of workplace and degree of contact with others and (as here) the impact on the employer’s business/client relationships.

These are just a couple of claims in this area; we anticipate that many more are waiting in the wings and that we will see a further wave of claims lodged as more people return to workplaces. For employers, it is a case of continuing to make decisions in what is still largely uncharted legal territory.

It is however reassuring to see that, so far, employment tribunals are trying very hard to balance fairly the interests of both employers and employees in this area.

Gillian MacLellan is a partner at international law firm CMS