Employment Law Cases

COVID-19: dismissal for refusal to return to work

Rodgers v Leeds Laser Cutting Ltd

An employee dismissed for leaving work and refusing to return because of COVID-19-related concerns was not unfairly dismissed.

Under s. 44 and 100 of the Employment Rights Act 1996, employees are protected from being subjected to a detriment or being dismissed for exercising their right to leave their workplace. To gain such protection, employees must have a ‘reasonable belief’ that their workplace poses a serious or imminent threat to them or to others. This is a Day 1 right and employees don’t need two years’ service to bring such a claim.

Background

Following the start of 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, including staggered start/finish times, providing masks and strict social distancing measures. Two days later, 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 contact between LLC and Mr Rodgers until his dismissal a month later. He claimed that his dismissal was automatically unfair because:

  • he was unfairly dismissed because, in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left or refused to return while the danger persisted, and
  • he was unfairly dismissed, in the above circumstances of danger because he took appropriate steps to protect himself or other persons from the danger

Tribunal decision

His claim was dismissed.

The tribunal accepted that Mr Rodgers had significant concerns about CVID-19 generally. However this was not enough to bring him within the scope of the statutory protection:

  • The communication with his manager had not mentioned any workplace dangers and he could not show that there was in fact any such danger. LLC had implemented the recommended government safety guidance.
  • Despite his concerns about COVID-19, Mr Rodgers had breached self-isolation guidelines to drive a friend to hospital.
  • Mr Rodgers had not taken any steps to avert the alleged danger or raised concerns with his manager before leaving work.

While COVID-19 could potentially amount to circumstances of serious and imminent danger, to accept Mr Rodgers’ argument that, despite the safety measures in place, his belief (of a serious and imminent danger which he could not avert) was reasonable would be to accept that the very existence of the virus creates circumstances of serious and imminent danger. This would lead to any employee being able to rely on s. 44 and 100 to leave the workplace, simply by virtue of the pandemic – and this is not what the legislation is aimed at.

Link to judgment: https://www.bailii.org/uk/cases/UKET/2021/1803829_2020.pdf

Comment

This decision is not binding on other tribunals and turned very much on its particular facts. However, it’s a reminder to employers that, while there were no circumstances of serious and imminent danger in this case, a failure to put in place adequate COVID-19 may expose them to the risk of claims in the future. However, the mere existence of the virus is not enough and those employers who have implemented safety measures are unlikely to face successful claims of this kind. Here Mr Rodgers didn’t really help himself in that his evidence was ‘vague’ and ‘contradictory’ and he’d not raised any concerns with his employer before absenting himself from work.