Refusing to return to work – COVID case

In the recent case of Rodgers v Leeds Laser Cutting Ltd, it was ruled that an employee, who had been dismissed from his role for not attending work as a result of Covid-19 concerns, was not automatically unfairly dismissed.

The Case

When the first national lockdown began in March 2020, Leeds Laser Cutting had carried out risk assessments in order to arrange for safety measures to be put in place for their employees to continue working during COVID-19. These safety measures included social distancing, providing employees with masks, and enforcing staggered start and finish times.

A few days later, Mr Rodgers had advised his manager that he would not be attending work until the lockdown eased, as he had been concerned about the risk of infecting his vulnerable children with COVID-19.

After this happened, Mr Rodgers had heard nothing more from Leeds Laser Cutting until they had proceeded to dismiss him a month later. As Mr Rodgers did not have the requisite service (i.e. two years employment) in order to being an unfair dismissal claim, he had proceeded to bring an automatic unfair dismissal claim (under s100(1)(d) and (e) of the Employment Rights Act) against the Respondent. 

Section 100 of the Employment Rights Act states that an employee’s dismissal is automatically unfair in circumstances of danger which the employee “reasonably believed [there] to be serious and imminent danger [and] which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work” (s100(1)(d) Employment Rights Act), or “in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger” (s100(1)(e) Employment Rights Act).

The Decision

The Employment Tribunal dismissed the claim – the Tribunal accepted that Mr Rodgers had concerns about COVID-19, however they did not agree that they were directly caused by his workplace. The Tribunal had determined that Mr Rodgers actions, which included leaving his home during isolation, working in a pub during the lockdown, and also not wearing a facemask, did not support his assertion that there were circumstances of danger which he believed to be serious and imminent.

In addition, Leeds Laser Cutting had also put a number of safety measures in place in order to lessen the risk of COVID-19 spreading in their workplace. If Mr Rodgers had followed the steps which had been put in place, the dangers would have been reduced. This meant that, as per the requirement in s100(1)(d) Employment Rights Act, there was no such danger that could not have reasonably been avoided, as there were a number of precautions that Mr Rodgers could have taken.

Summary

Cases such as this one display that employers who have done everything that they could do in order to reduce the risk of COVID-19 infection within their workplaces should be protected when defending against claims presented under s100(1)(d) and (e) Employment Rights Act.

Despite the fact that COVID-19 measures have significantly changed since the first lockdown started, it is still very important to ensure that workplace policies are adhered to, and that risk assessments are carried out frequently in order to lessen any dangers in the workplace.

 

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