COVID-19 and return-to-work refusers

Adele Shortman analyses the first significant COVID dismissal case to be heard in the Employment Appeal Tribunal.

In Rodgers v Leeds Laser Cutting Ltd [2022] EAT 69 the EAT dismissed an appeal from Mr Rodgers, finding it was not automatically unfair to dismiss him for failing to return to work following isolation because of concerns around the risk of COVID-19 to his vulnerable, shielding children.

What happened?

Mr Rodgers, (the Claimant) was employed as a laser cutting engineer working for Leeds Laser Cutting Ltd (LLC) (the Respondent). Having worked for the company for less than two years, he had limited statutory protections and had not yet accrued protection from ordinary unfair dismissal. However, where a dismissal is deemed to be ‘automatically’ unfair there is no need for any minimum period of qualifying service. Amongst other reasons, termination may be found to be ‘automatically unfair’ if an employee is dismissed because ‘he believed there to be an immediate, serious and unavoidable danger in his workplace’.

The Claimant worked in a large warehouse which was typically only occupied by five employees at any one time.

During the first national lockdown, LLC had instructed consultants on COVID-19 risk mitigation and were already complying with most of their recommendations which included mask wearing, social distancing and staggered shift patterns.

Mr Rodgers left his workplace as usual on Friday 27 March 2020. Despite the above efforts of LLC, on Sunday 29 March, he emailed his boss suggesting he had ‘no alternative but to stay off work until the lockdown has eased’ due to his children being vulnerable. There was no communication from Mr Rodgers until 24 April 2020 when he received his P45 and was dismissed.

The Employment Tribunal claim

Mr Rodgers issued a claim for automatically unfair dismissal in the Employment Tribunal (‘ET’) suggesting he had to protect himself from circumstances of danger (COVID-19) which he reasonably believed were serious and imminent and which he could not have been expected to avoid.

However, the ET concluded he had not been dismissed for health and safety reasons. Mr Rodgers had general concerns about COVID 19. He did not have the requisite belief of a ‘serious and imminent danger’ in his workplace’ but rather a general concern about the prevalence of the virus in society at large. The ET’s reasoning was twofold: -

• Firstly, they considered LLC had implemented reasonable risk reduction measures in the workplace.
• Secondly, the ET had concerns regarding the extent of Mr Roger’s genuine concern around COVID-19 given he had driven a friend to hospital, worked at a pub during the pandemic and expressed no reservations about commuting to and from work. These actions contradicted the reasoning he had proffered to LLC and cast into doubt his stated belief that working conditions at LLC presented a danger that was serious and imminent.

The Appeal

Mr Rodgers appealed to the Employment Appeal Tribunal (‘EAT’). The EAT accepted, in principle, that an employee could reasonably believe there were circumstances of serious and imminent danger arising within the workplace that prevented him or her from returning to work.

However, in Mr Rodger’s case, it found that LCC’s workplace posed no greater a risk than general society and that the circumstances of danger were not serious or imminent, at the workplace or at large. Moreover, the EAT found that Mr Rodgers could have been expected to take reasonable steps to avoid such danger such as wearing a mask and social distancing. The appeal was therefore dismissed.

What does this mean for me?

We know that, throughout the pandemic, many employers struggled to deal with employees who were reluctant to return to the workplace and could not be convinced that safety measures put in place, however rigorous, were sufficient to keep them safe. Although every case will depend on its own particular facts, this decision suggests that an employer is highly unlikely to be found guilty of automatic unfair dismissal for health and safety reasons, if it can show that it applied it’s mind seriously to COVID-safety, and clearly communicated any additional precautions to staff.

It is important to note that the Claimant in this case had not accrued sufficient service to bring a claim of ‘ordinary unfair dismissal’ For longer-serving employees, an ET would expect to see clear evidence of a fair, detailed procedure being followed prior to dismissal.

As further COVID-related ET decisions begin to emerge, it will be interesting to build a picture of the legal legacy left to unfair dismissal law by the pandemic.

Adele Shortman is a Principal Associate at Weightmans.