Covid-19 – Dismissal For Refusal To Return To Work

In Rodgers v Leeds Laser Cutting Ltd, an Employment Tribunal ruled that an employee, who was dismissed by his employer for refusing to attend his place of work due to Covid-19-related concerns and the risks they posed to his vulnerable children, was not automatically unfairly dismissed.

Rodgers v Leeds Laser Cutting Ltd

Case background

At the start of the first national lockdown in March 2020, Leeds Laser Cutting (LLC), carried out a risk assessment to put in place safety measures for its employees to continue working. These types of measures included staggered start/finish times, providing masks to everyone and social distancing.

A couple of days later, Mr Rodgers told his manager that he’d be staying away from work until the lockdown eased as he was concerned about the risk of infecting his vulnerable children.

There was then no further communication between LLC and Mr Rodgers until LLC proceeded to dismiss him a month later. Mr Rodgers did not have the necessary two years’ service needed to bring an ordinary unfair dismissal claim, so instead, he brought a claim of automatic unfair dismissal under Section 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA).

Section 100 ERA makes the dismissal of an employee “automatically unfair” where the employee reasonably believed there to be a serious, imminent danger and which they could not reasonably be expected to avert, and they then left or proposed to leave or refused to return to their workplace’ (Section 100(1)(d) ERA), or (or proposed to take) appropriate steps to protect themselves or others from the danger (Section 100(1)(e) ERA).

The decision

An Employment Tribunal dismissed the claim. The Tribunal understood that Mr Rodgers had concerns about Covid-19 but these were not directly attributable to the workplace. The Tribunal ruled that Mr Rodgers actions, such as not wearing a facemask, leaving his home during isolation and working in a pub during the lockdown, did not support his argument that there were circumstances of danger that he believed were serious and imminent.

Also, LLC had put in considerable steps to mitigate the dangers of Covid-19 spreading in the workplace. Had Mr Rodgers followed the steps that were put in place, the dangers would have been reduced, resulting in the key requirement in Section 100(1)(d) ERA that there must be a danger that can’t reasonably be avoided was not engaged.

Comment

This case reassures employers who did what they could to reduce the risk of infection in the workplace during Covid-19 that they will be protected in defending claims presented under Section 100 (1)(d) and (e) ERA based on the employee’s belief that Covid-19 presented a serious danger in the workplace.

Even now, it’s still important for employers to always be wary of Covid-19 and ensure policies and risk assessments are taken regularly to mitigate any dangers in the workplace.