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Employee Was Not Automatically Unfairly Dismissed After Refusing to Return to Work Over COVID-19 Concerns

on Friday, 30 April 2021.

In a recent case, an Employment Tribunal ruled that an employee who refused to return to work until the first coronavirus lockdown had eased, because he feared infecting his two young children with the virus, was not automatically unfairly dismissed.

Facts of the Case - Rodgers v Leeds Laser Cutting Ltd

Mr Rodgers worked for Leeds Laser Cutting Ltd (the 'Company') as a laser operator in a large workspace with five people typically working in the space at the same time. Following the announcement of the first national lockdown on 23 March 2020, the Company informed staff that the business would remain open and that measures would be put in place to allow staff to work as normal whilst reducing social contact. This was in accordance with government guidance at the time. The measures implemented by the Company included social distancing, wiping down of surfaces and staff being told not to congregate at lunch and break times.

On 29 March 2020, after a work colleague had displayed coronavirus-like symptoms, Mr Rodgers informed the Company that he had no alternative but to stay off work "until the lockdown eased" because he was concerned about infecting his two young children, one of whom had sickle-cell anaemia and the other being just seven months old. One month later, Mr Rodgers was dismissed.

Automatically Unfair Dismissal Claim

Having less than two years' continuous service at the time of his dismissal, Mr Rodgers was not entitled to bring a claim for 'ordinary' unfair dismissal under section 98 of the Employment Rights Act 1996 ('ERA 1996'). However, there is no minimum service requirement for claims of automatically unfair dismissal and accordingly he was able to bring a claim that he had been automatically unfairly dismissed under sections 100(1)(d) and 100(1)(e) of the ERA 1996.

Sections 100(1)(d) and 100(1)(e) of the ERA 1996 provide employees with protection from dismissal for:

  • exercising their rights to leave the workplace (or refuse to return to it) because they reasonably believe there is serious and imminent danger which they could not reasonably be expected to avert; or
  • taking (or proposing to take) appropriate steps to protect themselves or others where they reasonably believe there is serious and imminent danger.

Where a dismissal takes place for either of these reasons, it is said to be automatically unfair.

Tribunal Decision

Whilst the Tribunal accepted that Mr Rodgers had significant concerns about the pandemic and said that this was entirely understandable, the Tribunal found that any belief that there were circumstances of serious and imminent danger could not be reasonably justified on what was known when the relevant acts took place. As such, sections 100(1)(d) and (e) were not engaged and Mr Rodgers' automatic unfair dismissal claim against the Company was dismissed.

In particular, the Tribunal noted that despite Mr Rodgers' concerns around COVID-19, he drove his friend to hospital the day after he informed the Company that he intended to stay off work. This was during the period that he had been told by the NHS to self-isolate. In addition, on Mr Rodgers' own evidence, it was not difficult to socially distance given the large size of the workspace, which was described as the size of half a football pitch, and the small number of employees in the workspace at any one time. The Tribunal therefore concluded that a belief of serious and imminent danger in the workplace could not be reasonably justified.

The Tribunal also found that Mr Rodgers could have been expected to avert the dangers by abiding by the guidance, such as the social distancing measures and using PPE, if he wished to do so. He also did not raise any formal complaints about the measures and he made no reference to the measures or lack of measures implemented by the Company as playing a part in his decision to absent himself from work. He therefore did not take appropriate steps to protect himself or others from the dangers and the Company could not have known that Mr Rodgers was absenting himself from work due to any concern of serious and imminent danger within the workplace.

The Tribunal therefore found that Mr Rodgers did not believe that there were circumstances of serious and imminent danger within the workplace, but that there were circumstances of serious and imminent danger all around. Accordingly, Mr Rodgers' dismissal was not deemed to have been automatically unfair as he alleged.

What Does This Case Mean for Employers?

The Tribunal made it clear that whether or not situations relating to the coronavirus pandemic will engage the provisions of sections 100(1)(d) and 100(1)(e) of the ERA 1996 will turn on the particular facts and merits of each case.

Although the Secretary of State declared on 10 February 2020 under regulation 3(1) of the Health Protection (Coronavirus) Regulations 2020 that COVID-19 posed a serious and imminent threat to public health, such a description does not mean that the provisions of sections 100(1)(d) and 100(1)(e) of the ERA 1996 are automatically satisfied in instances where employees are dismissed because they refuse to attend work due to COVID-19 related concerns.

Although the Tribunal's decision is not binding, it highlights that implementing adequate safety measures in the workplace can mean that circumstances of serious and imminent danger in the workplace are averted. Such measures will therefore ultimately help to reduce the risk for employers of dismissed employees successfully bringing automatically unfair dismissal claims against them under sections 100(1)(d) and 100(1)(e) of the ERA 1996.

For further information on the above or advice on workplace disputes, please contact Siân James in our Employment Law team on 07468 698971, or complete the form below.

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