Nowhere safer than home…

In January 2021, the Employment Tribunal (ET) heard a claim of automatic unfair dismissal, from an employee, Mr Rogers, who was dismissed by his employer Leeds Laser Cutting Ltd (LLC) for his refusal to attend work due to Covid-19 health and safety concerns.

Mr Rogers had been employed as a laser operator for approximately 9 months, working with a handful of colleagues in a large warehouse environment. On 16 March 2020 at the beginning of the Covid pandemic, a colleague developed Covid symptoms and was sent home.

The UK then entered its first lockdown on 23 March 2020, and LLC duly communicated to its employees, the steps it was putting in place to reduce Covid risk in its workplace so as to allow it to remain open. Existing and additional measures included social distancing, masks, PPE, hand sanitiser and staggered shift patterns.

Mr Rogers initially claimed that he had been working with the colleague who was sick on the day he was sent home and was concerned that he was developing a persistent cough. However, he continued working until Friday 27 March 2020, before notifying LLC by text message on the Sunday that he had no alternative but to stay off work until the lockdown had eased. Mr Rogers explained that he had two children, one of whom was high risk due to a medical condition, and the other potentially at risk due to his age being only 7 months'. A self-isolation note was then provided to LLC which covered the period to 3 April 2020.

Neither Mr Rogers nor LLC contacted the other again until Mr Rogers was dismissed and he contacted LLC on 24 April 2020 stating he had just learned of his dismissal and asked for an explanation.

Mr Rogers brought a claim under s100(1) of the Employment Rights Act 1996 (ERA), asserting that he had been automatically unfairly dismissed, as his dismissal had been in response to him having a reasonable belief of a serious and imminent danger in the workplace, and that he left or refused to return to his place of work or any dangerous part of that, in circumstances where he could not reasonably be expected to avert that danger, or that he took steps to protect himself or others from the danger. Mr Rogers did not have two years' service to enable him to bring a claim of ordinary unfair dismissal.

Following the EAT's guidance (in a 2011 non-Covid-19 related case), the Tribunal considered (i) whether Mr Rogers believed there to be a serious and imminent danger; (ii) whether the belief was reasonable; (iii) whether Mr Rogers could reasonably have been expected to avert the danger; (iv) whether Mr Rogers took appropriate steps to protect himself or others from that danger; and (v) whether Mr Rogers took appropriate steps to communicate these circumstances to LLC.

The Tribunal found against Mr Rogers and dismissed his claim.

It considered that Mr Rogers did not believe that there was a serious and imminent danger in the workplace, but believed that such danger was all around him, and that he intended to remain away from work in any event, despite any workplace measures, until the lockdown had eased. The Tribunal did not find that Mr Rogers' beliefs were reasonable recognising that despite Mr Rogers' own reservations, and claims that he had not left the house in 9 months and that nowhere was safer than his home, he had decided to a drive a friend to hospital during his self-isolation period.

The Tribunal also concluded that it was reasonable to expect Mr Rogers to be able to avert any Covid dangers by abiding with Government guidance and LLC's measures, and to the extent that there were particular dangers which Mr Rogers felt could not be averted, he could have raised such issues with LLC. There was no evidence that he did so. It therefore found that it was not an appropriate step for Mr Rogers to absent himself from work completely where social distancing and other measures had been put in place at work, and where no complaints had been raised by him about any dangers which could not be averted.

Finally, the Tribunal concluded that LLC could not have known that Mr Rogers' absence was due to a concern of serious and imminent danger in the workplace, given that Mr Rogers had not communicated such concerns about the workplace, but rather, Mr Rogers had only explained his absence as being due to concerns about the virus in general. The criteria under s100(1) of ERA had not been made out, and the dismissal was not automatically unfair.

Points to consider

As the country continues on the path to recovery, there will no doubt be similar claims made where employees feel they have been unfairly dismissed for choosing not to go to work over fears of catching Covid-19 outside their home. Employers should bear in mind that although on the facts of this particular case, the employee did not succeed in their claim, the employer here had taken a large number of steps to reduce the risk of Covid-19 in its workplace, and the employee's reasons for not returning to work did not in fact directly concern the condition of the workplace. The outcome of this case may also have been very different if Mr Rogers did have 2 years' service or if disability discrimination had been alleged.

Employers should therefore ensure that where employees are required to attend their place of work, appropriate Covid-19 safety measures and risk assessments are in place. If employees raise concerns about the risks of being required to attend work given the Covid-19 pandemic, employers would do well to take steps to understand and address any concerns held by the employee before deciding how to proceed.