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17th May, 2021

The first of many? Tribunal rules employee was fairly dismissed after refusing to work during lockdown

social distanced game pieces

A Tribunal has ruled that an employee who refused to come into work due to fears surrounding safety during the first national lockdown was fairly dismissed by his employer.

Mr Rodgers, the Claimant, brought a claim of automatically unfair dismissal against a former employer, Leeds Laser Cutting Limited after he was dismissed at the end of April 2020.

When one of Mr Rodgers’ colleagues started displaying symptoms of COVID-19 and was sent home to self-isolate, Mr Rodgers decided he did not want to go into work for fears he would contract COVID-19 and spread it to his family, some of whom were immunocompromised. Mr Rogers texted his employer to let them know he would remain off work “until the lockdown had eased” and did not contact his employer again.

Leeds Laser Cutting told the tribunal how an external risk assessment had been conducted prior to Mr Rodgers deciding to self-isolate, and they made changes such as staggering work times and breaks, and social distancing in the workshop. All the employees interviewed made comments on how spacious the workshop was, and Mr Rodgers agreed social distancing would not be hard to do.

Mr Rodgers began working for the respondent in June 2019, so did not have sufficient continuous service of 2 years to qualify for a standard unfair dismissal claim. An employee without this service period can instead bring a claim of automatic unfair dismissal which Mr Rodgers did, relying on health and safety-related reasons. Mr Rodgers claimed he had a reasonable belief of serious and imminent circumstances of danger which he could not have reasonably been expected to avert.  His alternative argument was that he took appropriate steps to protect himself or other persons from serious and imminent danger.

It was held that Mr Rodgers’ concerns for the COVID-19 pandemic were understandable, however, his belief of danger was not reasonable as his concerns were not limited to his workplace. There was insufficient evidence that Mr Rodgers had specific concerns for his workplace, due to the fact he did not at any point express his concerns to his employer and allow them an opportunity to consider his concerns, rather he just informed them he would be absent until the lockdown had eased.

The steps Mr Rodgers took were neither appropriate nor reasonable in the circumstances, as he could have worked safely, if he followed the guidance set out, both by Leeds Laser Cutting and the general Government guidance set out at the time, including social distancing measures and the use of PPE which his employer had made available.

Tips for employers

This is one of the first cases we have seen from the first national lockdown and the Tribunal held that while the provisions set out in the Employment Act were not designed with the COVID pandemic in mind, they can be applied correctly in principle, and every case going forward will need to be considered on a case-by-case basis.

The case demonstrates that it is vital that all employers ensure they conduct full and detailed COVID-19 risk assessments, especially in the coming months as working-from-home rules change and more employees will return to the workplace.

Debbie Coyne

Employment

Senior Associate
Email: [email protected]
Tel: 01244 405 537 / 07870 365 050

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