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Can an employee be automatically unfairly dismissed for refusing to return to work because of COVID-19 related concerns?

To continue our series of articles on Covid-related dismissals, which includes our articles  Furlough Unfair Dismissal Cases Continue… and Covid-19 And Dismissals: An Unfair Dismissal During Passover, we can report on a further unfair dismissal claim.

In the recent case of Rodgers v Leeds Laser Cutting, the Tribunal found that an employee’s concerns about Covid-19 did not make their dismissal for refusing to return to work automatically unfair.

Under section 100(1) of the Employment Rights Act 1996, a dismissal of an employee will be automatically unfair if the reason for dismissal is that:

  • in circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, the employee left, or proposed to leave, or refused to return to, their place of work (s100(1)(d)); 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 themselves or others from the danger (s100(1)(e)).

The usual requirement of a two-year period of continuous employment does not apply in such cases.

At the start of the first national lockdown, Leeds Laser Cutting responded to the government guidance by carrying out a risk assessment, and consequently put in place safety measures to ensure the Company could remain operating. Measures included providing face masks to staff, social distancing and staggering shift times to minimise the number of staff working at one time.

Following the implementation of these measures, Mr Rodgers informed his manager that he would not be attending work ‘until the lockdown has eased’ as he had concerns of infecting his vulnerable children.

About a month after this notification, Mr Rodgers was dismissed by the Company, and neither party had corresponded with the other within this period.

As Mr Rodgers did not have two years’ continuous service with the Company, he brought a claim for automatic unfair dismissal under section 100(1)(d) and (e) of the Employment Rights Act 1996.

Whilst the Employment Tribunal accepted that Mr Rodgers had concerns about Covid-19, his claim was dismissed as his concerns were not sufficient enough to bring him within the region of the statutory protection.  The Tribunal relied on the fact that Mr Rodgers’ communication with his manager had not mentioned any workplace dangers, and that he could not show that there was in fact any such danger, as the Company had applied the recommended government safety guidance.

In addition to this, the Tribunal noted that, despite his apparent concerns about Covid-19, Mr Rodgers had breached self-isolation guidelines to drive a friend to hospital, and had been happy to work in a pub during his period of concern.

Mr Rodgers appealed this decision to the Employment Appeal Tribunal, but his appeal failed because the EAT found that Mr Rogers did not reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large, and the Company had taken considerable steps to avert the danger of Covid-19 infection in its workplace. 

What does this mean for employers?

This case is useful for employers facing automatic unfair dismissal claims in relation to Covid-19, as it reassures those who did take action to minimise the effects of Covid-19 in the workplace that they may have some support to their defence of claims based on an employee’s belief that COVID-19 presented a serious and imminent danger in the workplace.

However, it is important to note that the that each case is decided on its own facts, and it can be difficult to forecast an outcome in this developing area of the law.

For further assistance on Covid-19 related, or any other employment matters, please contact our Employment team.

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