Employee Dismissed for Covid Fears

In our recent blog Refusal to Attend Work Due to Fears About Covid, we looked at an employment tribunal decision which found that an employee had been unfairly dismissed, and automatically unfairly dismissed, for refusing to attend work (and wanting to work from home) due to fears about the dangers posed by the Covid pandemic. 

By contrast, the Employment Appeal Tribunal (“EAT”) has recently issued a judgement in a different case, Rodgers v Leeds Laser Cutting Ltd, reaching the opposite conclusion.

Legal framework

An employee who is dismissed by the employer will have been automatically unfairly dismissed (and will not require 2 years’ service to bring a claim) if the reason, or main reason, for dismissal was that:

  • The employee left or refused to return to his place of work
  • This was due to there being circumstances of danger
  • The employee reasonably believed the danger to be serious and imminent
  • He could not reasonably have been expected to avert the danger

Factual background

The employee in this case left his place of work and refused to return to it while the national lockdown was in place.  He had a vulnerable child and was concerned by the risks of the child being exposed to the coronavirus infection.  He felt that his home was safe, but that society in general was not.  His work could not be performed from home.

The employee was dismissed by the employer (which simply issued a P45 without following any procedure).  The employee claimed automatically unfair dismissal for health and safety reasons – he could not claim “normal” unfair dismissal as he did not have the required 2 years’ service. 

The tribunal found that while he was supposed to be self-isolating, the employee had driven a friend to hospital, and that he had worked in a pub during the pandemic.

The tribunal accepted evidence that the employer’s place of work was large and that only a few people worked there.  It was possible to maintain social distancing.  A risk assessment had been carried out and various preventive measures were in place to safeguard employees’ health.

Tribunal and EAT decision

The tribunal rejected the claim of unfair dismissal.  It held that the employee’s fears related to society in general, rather than any particular danger associated with the workplace.  In any case the tribunal did not accept that the employee had a reasonable belief that there was a serious and imminent danger if he was to attend work (highlighting his actions in driving a friend to hospital and working in a pub).  The tribunal also concluded that the employee could have reasonably taken steps to avoid the danger (such as following the rules on social distancing, hand washing etc).  Essentially, the tribunal concluded that there was no good reason for the employee refusing to attend work. 

The EAT upheld the tribunal’s decision.  The EAT stated that an employee’s concern about a situation of danger need not specifically be about the workplace itself (so could perhaps relate to the dangers posed by travelling on public transport), but in this case the tribunal was entitled on the evidence to conclude that Mr Rodgers did not have a reasonable belief that attending work would put him in serious and imminent danger.  The tribunal was also entitled to conclude that the employee could reasonably have been expected to avert the danger. 

Conclusion

The fact that the outcome here differs from the previous case we looked at highlights the fact that each case will depend on its own individual facts and circumstances, and it is not possible to assume that the decision in one case will be followed in another.  An employment tribunal will listen to detailed evidence, perhaps over a number of days, before reaching a conclusion.  As we advised throughout the pandemic, a key part of the tribunal’s consideration in such cases will include an analysis of the steps taken by the employer to reduce the risks. Also, how these steps have been communicated to the workforce is vital to the issue of whether the employee’s fears were reasonable. 

We can expect to see far fewer such cases arising now, but such claims are not, of course, restricted to the Covid pandemic, and unfair dismissal claims relying on these legal provisions can arise due to any perceived threat to health and safety.  It is very important that employers take health and safety complaints seriously.  They should tread very carefully if an employee leaves, or refuses to attend work, due to fears for their wellbeing.

Expert advice on these complex issues can be obtained from our team of experts.

This update contains general information only and does not constitute legal or other professional advice.

Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012

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