Covid Related Claims: Taking action against employees who refuse to attend the workplace due to worries about covid infection

Published 29 April 2021

An employee who was dismissed for refusing to attend the workplace because he was worried about Covid infection was not automatically unfairly dismissed.

THE FACTS

Dismissing an employee when they refuse to attend the workplace because they reasonably believe that there is serious and imminent danger may, in some in circumstances, be automatically unfair. To be successful in such a claim, the employee, as well as believing in the circumstances of serious and imminent danger, must show that they could not reasonably have been expected to avert the danger, take appropriate steps to protect themselves or others from the danger, and take appropriate steps to tell their employer about the circumstances.

Mr Rodgers was employed by Leeds Laser Cutting Limited.  At the time of his dismissal, he had less than two years’ continuous employment, so could not bring a claim of ordinary unfair dismissal.

Mr Rodgers sent his employer a text stating that “unfortunately I have no alternative but to stay off work until the lockdown has eased. I have a child of high risk as he has sickle cell (sic) & would be extremely poorly if he got the virus and also a 7 month old baby that we don’t know if he has any underlying health problems yet.” He had not previously said anything to his employer which suggested he thought that there were circumstances of imminent danger in the workplace nor, after he had stopped attending work, did he raise any specific concerns about his workplace. He did not return to work, and he was dismissed.

Mr Rodgers claimed in the employment tribunal that he had been automatically unfairly dismissed. The tribunal dismissed his claim.

The tribunal found that Mr Rodgers worked in a large warehouse , about the size of half a football pitch. There were typically around five employees on the shop floor.  His employer had conducted a risk assessment with an external expert and had put in place recommendations to protect against risk – including wiping down work surfaces, social distancing, staggering start and finish times and lunch breaks, and reminders about handwashing. These steps followed the government guidance at that time.

The tribunal found that Mr Rodgers held significant concerns about the Covid-19 pandemic. He also had genuine concerns for his baby and young child who had sickle-cell anaemia. However, the tribunal did not consider that Mr Rodgers believed there were circumstances of serious and imminent danger in the workplace: his belief was that the circumstances of serious and imminent danger were all around. Given the size of the workplace and the small number of employees, the measures that his employer had put into place plus the guidance at that time, meant that even if he did believe that there were imminent dangers in the workplace, his belief would not have been objectively reasonable. The tribunal also held that, had there been any dangers in the workplace, Mr Rodgers could reasonably have been expected to avert them by socially distancing within the large, open workspace, using additional personal protective equipment and by regularly washing his hands. There had been no need to entirely absent himself from work to avert any danger. Finally, Mr Rodgers did not communicate his concerns of serious and imminent danger by making formal complaints, and it was found this was because his concerns and fears were in respect of the virus in general.

WHAT DOES THIS MEAN FOR EMPLOYERS?

As an employment tribunal decision, this decision is not binding. However, it is a useful decision for employers. If other tribunals take the same approach, dismissing employees who have simply “downed tools” on the basis that the virus is circulating will not be automatically unfair. Employers must of course make sure that they follow all government guidance, and (where employees have more than two years’ continuous employment) follow a fair process in considering whether to take action against an employee who is refusing to attend their workplace.

Mr D Rodgers v Leeds Laser Cutting Limited ET 1803829/2020