COVID-19 did not justify employee’s refusal to attend the workplace
In one of the first COVID-19 related tribunal decisions (Rogers v Leeds Laser Cutting Limited) an employment tribunal has rejected an employee’s claim that COVID-19 created circumstances of ‘serious and imminent danger’ allowing him to refuse to attend the workplace and gain protection against dismissal under section 100 Employment Rights Act 1996 (ERA 1996).
On 29 March 2020, the Claimant (Rodgers) messaged his manager saying that he would be staying away from his workplace "until the lockdown has eased" because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with COVID-19. A month later, he was dismissed.
Rodgers alleged that he had been automatically unfairly dismissed for exercising his rights under sections 100 ERA 1996.
The tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known when the relevant acts took place. On the facts, such a belief could not be established and the claim failed. The tribunal found the following matters of be of particular importance:-
- Despite his apparent concerns about the risk of COVID-19 transmission, he had breached self-isolation guidance to drive a friend to hospital on 30 March 2020 (the day after leaving work).
- His message to his boss did not mention concerns about workplace danger and he could not show there had been any such danger. Government safety guidance at that time had advised hand washing and social distancing, both of which the employer had implemented.
- Rodgers had not taken any steps to avert danger nor had he raised concerns with his manager before absenting himself from work. This was not appropriate.
Rodgers' argued that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer's safety precautions. The tribunal rejected this finding that accepting this submission could lead to any employee being able to leave the workplace, simply by virtue of the pandemic (and then rely on section 100).
This is a first instance decision and so is not is not binding on other tribunals but it might give a flavour of how tribunals might approach this issue. It does, however, demonstrate the importance of implementing appropriate COVID-19 secure measures and communicating the steps that have been taken to employees. Doing so may make it harder for employees to establish that the workplace is dangerous. Despite the vaccination programme and the easing of restrictions the threat of COVID-19 remains very real and as employers try to get employees back into the workplace, this case serves as a useful pointer to the steps employers need to take to protect themselves from successful claims.
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For more information on this update, or any Employment matters please contact Jon Taylor.