Employment Law Case Update: Covid-19 Unfair Dismissal

The last 12 months have raised many different questions for world of Employment Law, with the introduction of furlough leave and additional health and safety requirements in the workplace.  It is only now that we are starting to see claims of this nature in the Employment Tribunal and today we review the case of Mr D Rodgers v Leeds Laser Cutting Limited 2021, in which the Employment Tribunal (ET) considered whether an employee who refused to attend work for health and safety concerns related to Covid-19 was unfairly dismissed.

Mr Rodgers began working for the company in June 2019 as a laser operator. By the time the first national lockdown was announced in March 2020, the company had already conducted a risk assessment and implemented measures such as staggered start times, wiping down surfaces, and reminding employees not to congregate at lunch times.

Mr Rodgers admitted to the ET that it was possible for him to socially distance at work, though he maintained that in some instances employees had to work together. He did not raise any specific safety concerns with his manager, nor did he ask for a mask.

On 25 March, Mr Rodgers developed a slight cough, which he attributed to the temperature and dust in the workplace. A couple days later he left work for the weekend and did not return. He messaged his line manager telling him he would not return “until the lockdown has eased” because he had two vulnerable children at home; one child had an underlying health condition and the other was a seven month old infant. His line manager texted back, “ok mate, look after yourselves”.

Mr Rodgers obtained a self-isolation note for 28 March to 3 April. During this period, he drove a co-worker to the hospital, though they both wore masks.

Neither Mr Rodgers nor the company contacted the other to discuss furlough leave, sick pay, or Mr Rodgers’ return to work. Mr Rodgers was then subsequently dismissed.

Mr Rodgers brought a claim for automatic unfair dismissal under Section 100 of the Employment Rights Act. Under this section a dismissal will be automatically unfair where the employee was dismissed for refusing to work in circumstances they reasonably believed posed “serious and imminent” danger to health and safety, or for taking “appropriate steps” to protect themselves and others from the danger.

The ET dismissed Mr Rodger’s claim for automatic unfair dismissal, accepting that Mr Rodgers was concerned about the danger of Covid-19 in general but did not accept that he believed there were circumstances of serious and imminent danger in the workplace. This was in light of the fact that he admitted it was “not hard” to socially distance in the workplace, he could regularly wash his hands, and he had driven his friend to the hospital when he was supposed to be self isolating. Mr Rodgers also did not raise any specific workplace safety concerns with his line manager, nor did he indicate his decision to stay away from work was because of unsafe working conditions.

The ET therefore concluded that the decision to stay away from work “was not directly linked to his working conditions” and it was not “appropriate for [Mr Rodgers] to absent himself from work entirely.”

This case will be of interest to many employers, especially as businesses begin to reopen and employees are asked to come back to the workplace. However, employers should be aware that this case is not binding on future tribunals and had unique circumstances, such as Mr Rodgers failing to raise health and safety concerns with his employer prior to leaving the workplace.

In cases where the employee has explained why they believe work conditions pose a serious risk to health and safety, the onus is on the employer to show they have taken appropriate steps to minimise the risk. A tribunal will then look at the circumstances to determine whether the employee has a reasonable belief that their workplace poses an imminent threat to health and safety, having regard to their specific vulnerabilities and the information available about Covid-19 at the time. If the employee’s belief is reasonable, they will be protected from unfair dismissal, regardless of their length of service.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.