Employee Who Stayed In Italy At The Start Of The Pandemic Was Automatically Unfairly Dismissed – Employment and HR

IT professional, Mr Montanaro, worked in the UK for Lansafe Ltd.
Italy went into lockdown while he was there on annual leave. Unsure
of whether he could travel back to the UK, he explained the
situation to his employer and was asked to wait for further
instructions. No further instructions were given despite Mr
Montanaro contacting his manager. He continued to work remotely and
only discovered he had been dismissed on 1 April 2020, when an
email was sent to him which referred to his dismissal.

A dismissal letter dated 11 March 2020, which Mr Montanaro had
never received, referred to unauthorised absence and said that Mr
Montanaro had not been in contact with his manager or provided
reasons for his absence. The employer did not invite Mr Montanaro
to a disciplinary hearing before dismissing him.

Under UK law, an employee is automatically unfairly dismissed if
the reason (or, if more than one, the principal reason) for their
dismissal is that, in circumstances of danger which the employee
reasonably believed to be serious and imminent, they took (or
proposed to take) appropriate steps to protect themselves or others
from the danger.

The tribunal found that Mr Montanaro had been automatically
unfairly dismissed. Due to the declaration of a worldwide pandemic
and the significant levels of infections and deaths at the time, Mr
Montanaro had reasonably believed the virus to be a serious and
imminent danger that could be avoided. He had taken appropriate
steps to protect himself and others and communicated about the
situation in Italy to his line manager.  There was no refusal
to work. The dismissal letter was inaccurate. The Tribunal
concluded that Mr Montanaro had been dismissed because he had
communicated the difficulties posed by the pandemic and proposed to
work remotely from Italy until circumstances changed.

Key Action Points for Human Resources and In-house
Counsel 

Cases concerning refusal to attend the workplace are fact
sensitive. This decision is from a first-level Employment Tribunal
and is therefore not binding on future Tribunals. However, it is
useful as it demonstrates that employers should be careful not to
take rushed decisions if an employee fails to attend work due to
COVID related reasons. Where, for example, an employee becomes
stranded overseas and expresses concerns for their health and
safety, employers should take a considered approach to dealing with
the situation.

Employers should always consider the relevant government
guidance that is available at the time, as this is a relevant
(albeit not determinative) factor that Tribunals will take into
consideration.

The case also highlights the importance of having clear rules
and procedures in place for annual leave and remote working and
making employees aware of these from the outset to avoid
misunderstandings.

Montanaro v Lansafe Ltd ET/2203148/2020

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