Employee who refused to attend work during lockdown fairly dismissed

In one of the first tribunal cases to emerge from the first national lockdown, an employment tribunal has ruled that an employee had been fairly dismissed for refusing to come into work.

Mr Rodgers had worked for Leeds Laser Cutting as a laser operator since June 2019. Mr Rodgers texted his employer on 29 March 2020, stating that he was going to stay off work “until the lockdown has eased”. His concern was centred on the health impact on his children, one of whom was at high-risk of contracting coronavirus because of sickle-cell anaemia.

The employer had conducted an independent risk assessment which identified risks and made recommendations such as social distancing, cleaning, and staggering breaks. These recommendations had been put in place. The workplace itself was spacious, with a small number of employees and social distancing was, in Mr Rodgers’ own words, “not hard” to do.

Mr Rodgers did not contact his employer again or turn up for work.  On 24 April 2020 he was dismissed. He did not have the two year continuous service period to be able to bring an ordinary unfair dismissal claim. Instead, he brought a claim of automatic unfair dismissal for health and safety related reasons, which has no continuous service period requirement. He claimed that his refusal to return to the workplace had taken place “in circumstances of danger which he reasonably believed to be serious and imminent” and which “he could not reasonably have been expected to avert”. Alternatively he claimed that in these circumstances he had taken “appropriate steps to protect himself or other persons from the danger”. If had been able to satisfy either of these conditions, which are laid down in the Employment Rights Act, his dismissal would have been automatically unfair.

It was accepted that Mr Rodgers was concerned about the pandemic and the health of his children. Nonetheless, the tribunal concluded that his belief that the coronavirus represented circumstances of a serious and imminent danger was not reasonable. He believed the coronavirus to be a serious and imminent danger everywhere, not limited to his workplace. He had not communicated any specific concerns with his employer. Objectively, the large size of the workplace facilitated social distancing in line with national guidance and this fact also weighed against the belief being a reasonable one.

Mr Rodgers could reasonably have averted the danger by following the guidance, using the PPE his employer had made available and washing his hands. Absenting himself entirely from the workplace was not an appropriate step to take to protect himself or others from danger in the circumstances. For these reasons, the employment tribunal dismissed his claim.

This decision is not binding on other employment tribunals, and relates to the very different circumstances right at the outset of the pandemic. However the decision is significant for a number of reasons:

• It illustrates the importance of conducting full risk assessments relating to COVID19 in all workplaces
• It confirms that, in principle, the risk from a global pandemic can engage the provisions in the Employment Rights Act which protect employees from unfair dismissal for specified reasons relating to health and safety
• It is likely that an employment tribunal will adopt a similar approach to health and safety detriment claims (ie where the claimant has been disadvantaged without being dismissed). Last year the High Court confirmed that these protections should be extended to all workers.