COVID-19 and unfair dismissal

Posted on May 23rd, 2022

Back in April 2021, we reported on the case of Mr D Rodgers v Leeds Laser Cutting Limited. The case raised some interesting points regarding an employer’s duty to ensure a safe working environment during the COVID-19 pandemic and the circumstances where an employer may be liable for an automatically unfair dismissal claim.

Refused to attend work

By way of background, Mr Rodgers refused to attend work during the first national lockdown because he had vulnerable children who would be extremely poorly if they caught COVID-19. His employer had put various measures in place to ensure staff safety. A risk assessment had also been undertaken by an external professional to identify the level of risk of various scenarios. Subsequently, staff were asked to continue with work as normal within the employer’s premises, which was a large warehouse. No further contact was made with Mr Rodgers and he was dismissed in April 2020.

Claim of automatically unfair dismissal

Mr Rodgers brought a claim of automatically unfair dismissal because he had exercised his right not to return to work to protect himself from circumstances of danger, which he had reasonably believed were serious and imminent and which he could not reasonably have been expected to avoid (section 100 (1) (d) and (e) Employment Rights Act 1996).

ET dismissed claim

His claim was dismissed by the employment tribunal (ET) as his concerns were because of the dangers to society as a whole, not because of specific and imminent dangers to his workplace. In his communication to his employer to remain off work, he had made no reference to his working conditions playing a part in his decision. He appealed to the employment appeal tribunal (EAT).

EAT also dismissed claim

Mr Rodgers’ appeal has now been considered and has also been dismissed. The EAT agreed that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large. While the EAT accepted that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger, on his own evidence he stated it was generally ‘not hard’ to socially distance at work and did not indicate that he would return if improvements were made. He intended, seemingly regardless, to remain absent until the national lockdown was over. The EAT found that given the large size of the workplace and the small number of employees, it was not hard to socially distance and measures were in place to reduce the risk of transmission, such as wearing a mask and sanitising hands.

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