Employees refusing to work are on shaky ground – Covid
A recent judgement has provided some clarity and reassurance for employers regarding COVID related dismissals.
In the case of Rodgers v Leeds Laser Cutting Limited, Rodgers worked in a warehouse style room with 4 colleagues, the business remained open during the pandemic. One of Rodgers’s colleagues displayed symptoms of Covid and was sent home to isolate.
Rodgers ultimately refused to attend work citing concerns over his children’s health and saying he would be staying off work until the lockdown was eased as he was worried about his child who had sickle cell anaemia and the risk of the child contracting the virus.
Rodgers hadn’t been employed for 2 years, and therefore would ordinarily not be entitled to bring a claim for unfair dismissal. He claimed automatic unfair dismissal (an exception to the 2 year rule) on the basis that he had reasonable belief that if he attended work he would be in serious and imminent danger on the grounds of health and safety.
The tribunal concluded that the decision was fair and that whilst Rodgers’s belief that he was in danger was accepted, it was held that it was not a reasonable belief of serious and imminent danger. The judge stated that COVID-19 could potentially amount to circumstances of serious and imminent danger but it did not in these circumstances.
The judgement needs to be treated with some caution:
- It did not examine whether or not the dismissal in terms of procedure were fair, it focussed purely on the automatic unfair dismissal principles and whether COVID 19 on the facts of this case could be caught under the health and safety provisions.
- As a result of that element of the claim failing, the actual dismissal was not examined further.
Crucially the Claimant’s attitude of excluding himself from the workplace until the national lockdown released was criticised, on the basis that he did not consider what the actual situation at work was (or the measures the company may have taken) relying wholly on the national situation. Ultimately Rodgers’s concerns about the workplace were general ones linked to the national situation, not specific to any risk he may have observed at his workplace.
This decision can provide some comfort to employers, on the basis that knee jerk reactions by employees to the pandemic and refusing to attend work are on shaky ground. Employees will need to have shown that they were able to highlight a specific risk in their workplace, this decision suggests. The advice we provided during the pandemic was clear, if someone is refusing to attend work, ensure that your risk assessment is up to date, communicate it, demonstrate, and describe the steps taken to manage the risk and ensure that you have engaged with the employee about their specific concerns.
This case shows that businesses who have taken those steps should be well insulated against claims brought on the grounds of health and safety.
