21 May 2021
The employment tribunal (ET) has held that an employee was not automatically unfairly dismissed following their refusal to come into work during the first Covid-19 lockdown.
Employees must have worked for an organisation for at least a period of two years in order to bring a claim of unfair dismissal. However, there are some cases where an employee can claim from day one of employment.
One of these circumstances is outlined in s44 of the Employment Rights Act 1996. In this situation, an employee has a ‘reasonable belief’ their workplace poses a serious and imminent threat. The danger can be to themselves or their family. If this is the case, they may leave the workplace and refuse to return whilst the danger persists. If they are dismissed, it could give rise to an automatic unfair dismissal claim.
On 23 March 2020, the UK went into its first lockdown as a result of the coronavirus pandemic.
Many businesses needed to close as a result of this. However, some were permitted to remain open during this time. Later, sector specific guidance on workplace safety would be outlined by the government. However, at the time, limited guidance was available.
Rodgers v Leeds Laser Cutting
The claimant in this case commenced work in a warehouse in 2019. The area was described as being ‘the size of half a football pitch’. Generally, he would work with around five other people. In early 2020, just before the first coronavirus lockdown, one of his colleagues displayed symptoms of Covid-19. The individual was sent home to isolate.
The first lockdown was implemented on 23rd March 2020. Following this, the warehouse remained open as it wasn’t on the government list of workplaces that needed to close. The organisation put mitigation measures in place to help stop the spread of the virus. These included social distancing, regular cleaning of workstations, and staggering start and finish times. There was also the voluntary use of facemasks, which were provided.
Two days later, the claimant self-isolated due to a cough. He was unable to get a test for Covid-19 at the time, so he attributed it to the dust in the warehouse. He later texted his manager, informing him that he was going to stay off work ‘until the lockdown had eased.’ He didn’t want to risk bringing Covid home to his children, one of whom had sickle cell anaemia. The manager replied with ‘okay mate, look after yourself’.
No further communication took place between the claimant and the organisation until 24 April. On this date, he discovered that he had been dismissed for unclear reasons. As a result, he brought a claim to the ET for automatic unfair dismissal. He did this on the basis of his ‘reasonable belief’ the warehouse posed a serious and imminent threat to his family’s health.
The tribunal dismissed his claim.
The ET carefully evaluated whether the claimant did have a ‘reasonable belief’ as outlined in the legislation. They did accept he had significant concerns about the ongoing pandemic. In particular, he was concerned about how this could impact his children should they catch the disease. Despite this, they called into question his actions as a result of this.
Crucially, the claimant had failed to specify to the organisation why he felt the workplace was unsafe. He had only outlined his intention to remain at home until lockdown was eased. He had refused to come into the warehouse. This was despite agreeing that he would have been able to socially distance. He also failed to demonstrate why the other measures taken to keep staff safe, such as the additional cleaning, did not go far enough. The tribunal considered this to be ‘vague’ and ‘contradictory’ evidence.
Indeed, at the time government guidance was limited for workplaces that could stay open. The guidance told staff to work from home if they could. If they could not work from home, employers must take steps to allow staff to keep their distance and wash their hands. From what the tribunal could establish, the claimant was able to do both of these things. He hadn’t stated anything to suggest otherwise.
The tribunal did, however, take issue with how the claimant was dismissed. They noted that had he been able to bring a claim for unfair dismissal, it likely would have succeeded.
Note for employers
This is an interesting case, despite only being a first instance judgement. Many organisations will likely breathe a sigh of relief at its outcome. That said, the circumstances here were very fact specific. It wasn’t the fact that the claimant refused to come into work due to safety concerns that was the issue. it was that he failed to demonstrate what these concerns were. Had he done so, this case could have gone differently. It would certainly have gone differently if valid concerns were ignored by the organisation.
As the pandemic continues, organisations should always be aware of the ‘reasonable belief’ argument. If employees raise concerns over workplace conditions be prepared to counter them. All concerns should be fully listened and responded to. If necessary, further changes should be considered. The threat of COVID-19 will be around for some time, regardless of the vaccine roll-out.
It should also be noted that the claimant could not bring a claim for unfair dismissal. Had he had length of service, he certainly would have been in a position to do so.
This does raise a significant question:
Would the organisation have approached the matter differently if the claimant had been able to pursue an unfair dismissal claim?
Be prepared for the implications of this ruling. Contact Croner today. We help you make sense of the rules affecting your business and help you stay on the right side of the law.
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