Regnante v Essex Care – The latest Covid-related case law

Covid cases continue to come before the employment tribunal; many involve allegations that employees have been dismissed for making protected disclosures and/or raising concerns about health and safety and are highly fact specific.

For claims to succeed under s 100 of the Employment Rights Act (ERA), an employee who is not a safety representative must demonstrate that in circumstances of danger which they believe to be serious and imminent and either:

(i) which they cannot be reasonably be expected to avert, they left or refused to return to their place of work; or

(ii) they took appropriate steps to protect themselves.

In Regnante v Essex Care, the claimant’s husband had successfully undergone treatment for cancer but was classified as being “clinically extremely vulnerable”, the consequences of catching Covid for him were potentially dire. Initially, in March 2020, Mrs Regnante was allowed to work from home, but her managers wanted her to work from the office to be fair to other employees. She completed a risk assessment questionnaire and was encouraged to amend some of her answers by her manager, which would enable her to work in the office and there were also discussions about taking 12 weeks’ unpaid leave and staying in a hotel when working in the office.

The tribunal reviewed the advice issued at the time which was to work from home unless absolutely necessary and noted that most of her tasks could be carried out from home. The tribunal was satisfied that despite the measures taken by the employer there were circumstances of danger, given the risk to Regnante’s husband if he were to catch Covid were serious. It upheld her claim that she had been constructively dismissed and found the following breaches of the implied term of trust and confidence:

1. Requiring her to attend work or take unpaid leave when she had valid concerns about the precautions taken to prevent the spread of Covid when her husband was shielding.

2. Improperly seeking to require her to change her responses so that she would be required to return to work.