Was it automatically unfair to dismiss an employee who refused to attend work over concerns about the risk of Covid-19 to his vulnerable children?

With increasing inflation ahead of us business could be forgiven for wanting to put Covid-19 behind them. However, businesses face a significant backlog of cases regarding Covid-19, and for those businesses effected the recent EAT case of  and the recent case of Rodgers v Leeds Laser Cutting Ltd. should give members hope that the court is willing to take a pragmatic response.

At the start of the pandemic and during the first national lockdown, Leeds Laser Cutting (LLC) carried out a risk assessment and put in place various safety measures to enable it to continue operating. These included providing masks and putting in place social distancing measures, as well as staggering start and finish times in order to reduce contact between employees. However, Mr Rodgers told his manager that he’d be staying away from work ‘until the lockdown has eased’ because of his concerns about infecting his vulnerable children. There was no further contact between the parties and Mr Rodgers was dismissed a month later.

As he didn’t have the necessary two years’ service to bring an ordinary unfair dismissal claim, he brought a claim of automatic unfair dismissal under ERA, s 100(1)(d) and (e), which state

“(d) in circumstances of danger which the employee reasonably believed to be serious and imminent 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, or

(e) 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.”

Whilst the Tribunal accepted Mr Rodgers had significant concerns regarding Covid-19 generally, it was found that this was not sufficient in itself to succeed in a claim.

The Court found that whilst Covid-19 had the potential to rise to a serious and imminent danger for the purposes of the legislation, the intention of the legislation as not to provide employees the right to refuse to attend work simply by virtue of the  pandemic. Any risk of serious and imminent danger must be directly attributable to the workplace.  As Mr Rodgers had not referred to any dangers particular to his workplace was refusing to return to work, and in fact could not establish such a danger. He had failed to take any steps to avert the alleged danger or raised concerns with his manager prior to leaving the workplace then his claim was dismissed.

On appeal the case the EAT agreed with the ET, suggesting that employees leaving or refusing to return to the workplace due to Covid-19 fell within 100 (d) only.

Whilst, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented him from returning to the workplace. Leeds Laser Cutting Ltd. had taken considerable steps to avert the danger and employees could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands. The appeal was dismissed.

In Conclusion

This appears to be the first appeal case of its type and it is reassuring for employers who did take steps to reduce the risk of infection in the workplace.  that they will be well placed to defend claims presented under s. 100 based on an employee’s belief that COVID-19 presented a serious and imminent danger in the workplace. However there is a note of caution. In this case it was found that Mr Rodgers had breached self-isolation rules on at least 2 occasions subsequent to his dismissal. The court found that Mr Rodgers did not in fact reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large.

Please note that this advice is general in nature. As a MILS member you have access to the MILS Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.