Claimant v Community Integrated Care

The claimant lacked the requisite two years' continuous service ending with the effective date of termination. His employment began on 8 July 2020 and terminated on 28 June 2022, falling short of the two-year qualifying period by several weeks. The tribunal had no jurisdiction to hear this claim under s.94 ERA 1996.

The tribunal found the reason for dismissal was unauthorised absence for five months and failure to comply with a reasonable management instruction to return to work, not the claimant's health and safety concerns about wearing face masks. The respondent made repeated attempts to get the claimant to return, including offering alternative work not requiring mask-wearing, which the claimant declined. The tribunal also found the claimant did not hold a genuine or reasonable belief that mask-wearing was harmful to health and safety, particularly given he smoked and vaped during the same period.

The claim failed for the same reasons as the automatic unfair dismissal claim: the claimant did not hold a genuine or reasonable belief that mask-wearing was harmful to health and safety, and the detriments alleged (disciplinary action, dismissal) were due to unauthorised absence and refusal to follow reasonable management instructions, not health and safety disclosures.

The tribunal found the claimant was in fundamental breach of contract by being absent without authorisation for five months, refusing to attend work, and failing to follow a reasonable management instruction to agree a return-to-work date. The respondent was entitled to summarily dismiss without notice. The claimant had been offered alternative work not requiring mask-wearing but declined, demonstrating his refusal was not based on genuine health concerns.

The claimant's claim for unpaid wages from 19 January 2022 to 28 June 2022 failed because he was absent without authorisation and without proper reason during that period. He was able but unwilling to perform his contractual obligations, including the alternative work offered that did not require mask-wearing.