An employee who refused to return to work due to Covid concerns was fairly dismissed, an employment appeal tribunal (EAT) has ruled, in one of its first considerations of a Covid-related dismissal.
The London EAT heard that Mr D Rodgers was self isolating at the start of the pandemic and told his employer, Leeds Laser Cutting, that he would not be coming back to work until lockdown eased. He was subsequently dismissed.
While Judge James Tayler noted that he understood Rodgers had genuine concerns about the pandemic and the safety of his children, this did not mean that he had a genuine belief that there were serious and imminent circumstances of danger that prevented him from returning to work.
The ruling also noted that Leeds Laser Cutting had taken steps to avert the danger of infection in its workplace and Rodgers “could reasonably have taken steps to avoid the dangers” during the pandemic by following those measures.
Yvonne Gallagher, partner at Harbottle & Lewis, said the outcome was a clear indicator that tribunals are taking a “pragmatic approach” to issues around Covid concerns.
“The mere assertion of a belief of danger by an employee will not be sufficient to create liability on the part of an employer that has taken reasonable steps to comply with Covid guidance,” she explained.
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Rabika Basran, employment solicitor at Gardner Leader, also said the result would be “reassuring to those employers that took immediate and specific steps to reduce risks of spreading Covid-19.” As a result, she said, diligent employers should see themselves “in a more favourable position to defend claims brought by employees” on this issue.
But, Basran warned: “It is worth noting that the manner in which an employee is dismissed in ‘all’ of the circumstances is still crucial to an employer’s success in defending such claims.”
Rodgers had started his employment as a laser operator for Leeds Laser Cutting on 14 June 2019. He worked in a “large, warehouse-type space” with usually five people on the shop floor.
After the national lockdown was announced on 23 March 2020, the company sent out an employee communication the following day saying it would remain open but Covid measures would be put in place.
A risk assessment was carried out in mid-March by an external firm, which included recommendations for social distancing, wiping down surfaces and staggering break times, most of which had already been applied by the company and discussed with staff.
Rodgers developed a cough on 25 March, which he said was due to dust, and left work at a normal time on 27 March.
On 29 March, he then sent an email to his line manager and the production manager, Mr Thackery, saying that he had “no alternative but to stay off work until the lockdown has eased”. The reason, he explained, was that he had a vulnerable child with sickle cell anaemia, as well as a seven-month-old baby. Thackery replied: “ok mate, look after yourselves”.
Rodgers obtained a self-isolation note from NHS 111 for the period 28 March to 3 April and there was no further contact between Rodgers and the business until Rodgers texted Thackery on 24 April.
Rodgers said he had been told he was “sacked for self-isolating” and requested it be sent in writing or email with a P45 and “an explanation of why my employment ended with the date it ended”.
Rodgers received his P45 on 26 April and Leeds Laser Cutting accepted that the receipt of the P45 constituted a dismissal.
On 29 January 2021, Rodgers’ claim of automatic unfair dismissal was heard in an employment tribunal (ET), where he said he had been dismissed for refusing to return to the workplace due to a serious and imminent danger, namely Covid-19.
But the tribunal dismissed the claim, concluding that Rodgers did not believe there to be a serious and imminent danger in the workplace, but in the world at large. It also found that Leeds Laser Cutting had taken reasonable measures to reduce the risk of infection in the workplace.
The appeal brought to the EAT on 12 April 2022 by Rodgers asked whether the ET had made an error in concluding Rodgers’ belief was one of a serious and imminent danger at large rather than at the workplace. However, the EAT dismissed the appeal.
Both Rodgers and Leeds Laser Cutting have been contacted for comment.