Covid-19: employee who refused to return to work because be believed his workplace posed a 'serious and imminent' danger loses unfair dismissal claim

In Rodgers v Leeds Laser Cutting Limited, the Employment Tribunal had to decide if an employee had been unfairly dismissed after he refused to return to his workplace ‘until lockdown restrictions had eased’ because he was worried that if he caught coronavirus, he would infect his vulnerable children. 

The law

Under sections 44 and 100 of the Employment Rights Act 1996, employees are protected from being subjected to a detriment (such as being suspended or having their pay deducted) or being dismissed for exercising their right to leave their workplace. 

To be protected, the employee must have a 'reasonable belief' that their workplace poses a serious and imminent threat to them, or to others - including members of the public and their own families. 

This is a 'day one' right and employees don't need two years' service to bring an unfair dismissal claim.

Facts

Mr Rodgers started working for Leeds Laser Cutting in 2019 as a laser operator. He worked in a large warehouse building ‘the size of half a football pitch’ with typically five other people. Shortly before the first national lockdown on 23 March 2020, one of Mr Rodgers’ colleagues displayed symptoms of Covid-19 and was sent home to isolate. 

The business remained open during lockdown and it informed its staff about the measures it had put in place so that they could continue working. These included social distancing, wiping down surfaces, and staggering start, finish and break times to avoid people congregating. It also provided masks for staff to use if they wanted to.

On 25 March 2020 Mr Rodgers had a cough which he attributed to the temperature and dust in the warehouse. Covid tests weren't available at that time, but he obtained a self-isolation note until 3 April 2020. 

Mr Rodgers informed his manager by text on 29 March 2020 that he was going to stay off work ‘until the lockdown has eased’ because he was concerned about what would happen if he contracted Covid and infected his two vulnerable children (one child has sickle cell anaemia and the other was only seven months old). His manager replied by text 'okay mate, look after yourself'. There was no other contact between the parties until 24 April 2020, when Mr Rodgers found out that he had been dismissed (it's not entirely clear how) and texted his manager to ask why his employment had ended.

He alleged that his dismissal was automatically unfair as he had exercised his legal right to leave his workplace under section 111 of the Employment Rights Act 1996. 

Decision

The tribunal started by looking at whether Mr Rodgers reasonably believed that his workplace put him in 'serious and imminent danger.' from contracting Covid. It accepted that he had significant concerns about the Covid-19 pandemic generally and was worried about the impact it could have on his children at a time when there was huge uncertainty about how younger groups in society might be affected by the virus. But, this hadn't stopped him from driving a friend to hospital and he didn't provide any evidence to show that he believed his workplace put him in imminent danger. In fact, he accepted that he could socially distance himself from others at work. This was reinforced by the text he sent on 29 March which didn't mention his working conditions at all and simply said he was going to remain at home until the lockdown eased. 

The tribunal could only focus on the knowledge about Covid-19 available when Mr Rodgers decided to remain at home (March and April 2020). At that time, the government advised people to keep their distance and to regularly wash their hands. It was possible for Mr Rodgers to do both of these things.

Mr Rodgers hadn't worked long enough to bring an ordinary unfair dismissal claim which would have succeeded given that he was dismissed without warning or given any opportunity to appeal.

Implications

This decision is not binding on any other tribunal and the facts are quite unusual. Mr Rodgers did not help himself; his evidence was 'vague' and 'contradictory' and he hadn't raised any concerns with his employer before deciding to remain at home. 

Employers shouldn't assume that similar cases will fail - particularly where employees have refused to come into work during spikes in infection rates, or have particular reasons for being fearful (such as underlying health conditions).

Most of the cases we see involve employees who have explained to their employer (usually in writing) why they believe that their workplace poses a serious and imminent risk to their health or to the health of others. That puts the onus on their employer to explain what steps they have taken to protect their staff and to attempt to reassure them. That task has been made somewhat easier since the government published its sector specific guidance notes on working safely during coronavirus and the HSE published guidance on making your workplace COVID-secure during the coronavirus pandemic as you can use these to demonstrate that you are taking all appropropriate steps to protect your staff. 

However, everyone is different and Covid continues to pose a particular threat to vulnerable and extremely vulnerable people (although the success of the vaccination process has done much to ameliorate this). If your employee has a reasonable belief that their workplace poses a serious and imminent risk, based on evidence about Covid-19 available at the time, they will be protected.

Talk to anyone who has concerns about returning to work and, if these are valid, make adjustments where you can.  

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