COVID-19 has thrown up numerous and multi-varied concerns for employers and employees alike. One notable area of consideration and concern has been the delicate and difficult issue of dismissals related to health and safety reasons. A recent case has shed more light on how Tribunals may deal with the pandemic-related workplace issue of employees’ refusal to work on health and safety grounds, due to fear of COVID-19.
Rodgers v Leeds Laser Cutting Limited ET/1803829/2020
This case considered the availability and legitimacy of fears over exposure to/contracting COVID-19 at work acting as grounds for statutory protection against unfair dismissal.
The Claimant refused to come into work after another colleague began to show symptoms of COVID‑19, and self-isolated. He informed the Respondent that he would not return to work until lockdown eased, as he was concerned for his very young child, who has sickle cell disease. After a month of refusing to attend work, the Respondent was dismissed.
The Claimant did not have sufficient service to claim ordinary unfair dismissal, so instead claimed that he had been automatically unfairly dismissed for exercising his rights to leave the workplace and take steps to protect himself where he reasonably believed there was a serious and imminent danger, under sections 100(1)(d) and (e) of the Employment Rights Act 1996.
The Employment Tribunal held that an employee could not rely on general health and safety concerns to refuse to work, as it was found that the mere existence of COVID-19 does not automatically create a serious and imminent danger in the workplace which cannot be avoided. Consequently, the Claimant’s “refusal to work in any circumstances simply by virtue of the pandemic”, was not reasonable. The Tribunal, therefore, upheld the Claimant’s dismissal.
In coming to its decision, the Tribunal placed considerable weight on the clear evidence that the Respondent had implemented reasonable and satisfactory health and safety measures, in line with Government guidance at the time, including: social distancing, wiping down surfaces, staggering arrival times and providing personal protective equipment (PPE). Additionally, the Claimant: 1) was found to have breached self-isolation guidance during his period of refusal to work, and 2) failed to raise any specific issues and could not show that there was a greater level of danger in the workplace than outside it. As such, it was found that the Claimant’s refusal to attend work was due to his general concerns around COVID-19, rather than any failings by the Respondent.
The Tribunal also expressed concern that accepting the Claimant’s argument in this case could lead to a general reliance on sections 100(d) and (e) to refuse to work, “simply by virtue of the pandemic.”
Lessons for employers
While this decision is not binding and is specific to the facts, this case highlights the importance and benefit for employers of devising and thoroughly implementing COVID-19 appropriate health and safety measures, both as a means of heading off any potential claims, and to successfully contesting any actual claims. The deciding factor will likely be the nexus between the reasons for refusal to work, and the COVID-19 measures implemented in the workplace at the relevant time. Practical advice for employers, then, is to ensure that they have taken all steps to align with the most up‑to‑date Government guidance, and take all reasonable measures to minimise the health and safety, and specifically COVID-19, risks in the office.
It’s worth noting that an ordinary unfair dismissal claim may have arrived at a different outcome.