Unfair Dismissal

Unfair Dismissal

Another Covid related decision has come through this month where the Employment Appeal Tribunal (EAT) upheld a tribunal decision that it was fair to dismiss an employee who refused to attend work over Covid concerns.

In the case of  Rodgers v Leeds Laser Cutting Ltd, Mr Rodgers refused to attend work during the first national lockdown justifying his refusal on the basis that  he had vulnerable children and was dismissed. Mr Rodgers claimed that he had been unfairly dismissed as he had exercised his right not to return to the workplace to protect himself from circumstances of danger.

The original tribunal however had found that whilst Mr Rodgers had general concerns about Covid-19, these were not directly attributable to the workplace and his actions (e.g. not wearing a facemask, leaving his home during self-isolation, and working in a pub during lockdown (!)) did not support his argument that there were circumstances of danger.

Mr Rodgers appealed and the EAT accepted that whilst, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented him from returning to the workplace, on the facts of this case, the tribunal had found that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large. Even if the tribunal had been wrong about this, the EAT found that it had been entitled to find that Mr Rodgers could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands

Similar situations are far less likely to arise now but there are still some employees concerned about returning to the workplace and this is a useful case for employers and hr managers to consider when looking at how to respond.