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Employer was Entitled to Dismiss Employee who Refused to Attend Work During Lockdown
April 29, 2021
The Claimant in Rodgers v Leeds Laser Cutting informed his employer in March 2020 that he would not be returning to work until the lockdown eased as he was concerned about passing on the infection to his family, including a young child with sickle cell disease. He was later dismissed.
His unfair dismissal claim was brought under employment legislation which says that an employee who stays away from the workplace because they believe there are “circumstances of serious and imminent danger” must not be dismissed or punished as a result.
The Employment Tribunal found that general concerns about Covid-19 did not qualify as “serious and imminent danger” in this case, particularly as the employer had already put safety measures in place to protect against the disease. The Tribunal commented that workers cannot rely on the health and safety legislation to refuse to work in any circumstances simply by virtue of the pandemic itself.
This is likely to be a welcome decision for employers dealing with disputes with staff over whether they were required to attend work during the pandemic. However, the Judgment does not yet set a precedent which other Employment Tribunals are bound to follow and each case must be decided on its own facts.
A key fact will be whether employers have taken reasonable steps to protect against the danger of Covid-19 in the workplace. This will continue to be the case as more employers begin to ask staff to return to work in the coming months.
We would therefore recommend that employers:
Carry out a Covid-19 risk assessment in relation to the workplace, as this is required by law, and record it in writing;
Implement adequate health and safety measures which reflect the current Government guidance and any particular risks identified by your risk assessment;
Update these measures as appropriate and make reasonable attempts to lower the risk of infection; and
Ensure all employees are aware of the safety measures in place, and consult with them on your risk assessment and any concerns they may have.
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