316: Dismissal of employee frightened to work due to COVID-19

In Rodgers v Leeds Laser Cutting Limited, one of the first unfair dismissal cases arising out of the pandemic, an Employment Tribunal has found that an employee who refused to work due to his concerns about the risk of contracting COVID-19 was not unfairly dismissed.

Under the Employment Rights Act 1996, employees are protected from detriment and will be automatically unfairly dismissed if they leave work because they have a reasonable belief that their workplace poses a serious and imminent danger that they cannot reasonably be expected to avert (sections 44 and 100). There is no minimum length of service to bring this type of claim. With effect from 31 May 2021, these provisions protect workers as well as employees.

Mr Rodgers was employed by Leeds Laser Cutting Limited as a laser operator working in a team of five in a large warehouse-sized area. From March 2020, the company implemented the recommended safety measures to combat the spread of COVID-19, including social distancing, staggered working hours, masks and additional cleaning procedures. On 16 March, a colleague of Mr Rodgers displayed COVID-19 symptoms and began self-isolating. On 27 March, Mr Rodgers left work and did not return. He told the company he would be staying away from work until lockdown eased because of concerns about his children, a seven-month old baby and a child with sickle cell disease. Mr Rodgers was subsequently dismissed for being absent without permission for a period of four weeks.

Mr Rodgers brought a claim of automatic unfair dismissal, alleging that he had left work because COVID-19 presented a serious and imminent danger in the workplace and he had to protect himself and his family from that danger.

The Employment Tribunal dismissed Mr Rodgers’ claim. Although it accepted that he had significant concerns about COVID-19 generally, there was insufficient evidence that he believed it amounted to a serious and imminent danger in his workplace. The Tribunal noted that the company had implemented the recommended government safety guidance; Mr Rodgers had not raised any specific concerns or complaints indicating a belief that there were circumstances of imminent danger; and he had not taken any steps to avert the alleged danger before leaving work. He had also breached self-isolation guidelines to drive a friend to hospital. The Tribunal concluded that Mr Rodgers’ decision to stay off work was not directly linked to his working conditions, and that in any event the level of danger in his workplace was no more than that in general society. It was therefore not objectively reasonable for him to believe there was a serious and imminent danger. In addition, Mr Rodgers could have reasonably avoided any risk by following his employer’s guidance and by adhering to social distancing.

This is only an Employment Tribunal decision and therefore not binding on future Tribunals. All health and safety cases will also be decided on their own facts and merits. The Tribunal stressed that the circumstances had to be considered in light of what the parties knew at the time, rather than what we now know about COVID-19. In this case, the Tribunal considered that the employee could have averted any danger by following the health and safety precautions put in place by his employer. This highlights the need for all employers to implement current health and safety guidance and to update this as required. The Tribunal accepted that COVID-19 had been described by the government as a ‘serious and imminent’ threat to public health, but noted that this could not in in itself satisfy the statutory test, otherwise any employee could simply stop working on the basis that the virus is circulating in society. It is also worth noting that if the employee in this case had two years’ qualifying service, he might nevertheless have succeeded in a claim of ‘ordinary’ unfair dismissal, for example, if the dismissal was found to be procedurally unfair.