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03rd May 2021

Dismissal of employee who refused to attend work for COVID reasons was not automatically unfair

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In Rogers v Leeds Laser Cutting, an employment tribunal found that the dismissal of an employee who told his manager that he would not return to work until after lockdown because he feared he would infect his children with COVID-19, was not automatically unfair.

The claimant did not have the required two years’ service to bring an ordinary unfair dismissal claim but was able to bring an automatically unfair dismissal claim on the grounds that the principal reason that his employment was terminated was his reasonable belief in there being a serious and imminent danger in his workplace. The claimant was concerned that he might infect his vulnerable children (both suffer from sickle-cell anaemia) with COVID-19 so he messaged his manager in March 2020 to say he would be staying away from the workplace until lockdown eased. One month later, the claimant was dismissed.

The tribunal held that a reasonable belief in serious and imminent workplace danger had to be judged on what was known at the time the relevant acts took place. On the facts it did not find that the claimant believed there were such circumstances specifically within the workplace and made the following points:

  • Despite the claimant’s concerns about the virus, he had breached self-isolation guidance to drive a friend to hospital (the day after he left work).
  • The claimant’s message to his manager did not mention concerns about workplace danger and he could not show that there had been any such danger. In March 2020, government safety guidance advised hand washing and social distancing and the employer had implemented both precautions.
  • The claimant had not taken any steps to avert danger or raise concerns with his manager before absenting himself work.

The tribunal rejected the claimant’s argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of his employer’s safety precautions. It found that accepting this submission could lead to any employee refusing to work due to a perceived risk of serious and imminent danger, simply by virtue of the pandemic.

The judgement is not binding on future tribunal decisions but this case demonstrates the importance of employers following the government’s COVID-secure workplace guidance and implementing protective measures. Such action could mitigate the risk of COVID-19 posing a serious and imminent danger in the workplace.

For more information on any of the items raised in this article please contact a member of the Employment Law Team.