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Covid - Can employees refuse to return to work?

Employment Tribunals are starting to hear cases relating to the coronavirus lockdown. Already we have a report of one case where an employer dismissed an employee who said it wasn’t safe to return. Was that unfair or not?

In the case of Rodgers v Leeds Laser Cutting, the employment tribunal had to decide if an employee had been unfairly dismissed after he refused to return to his workplace “until lockdown restrictions had eased” because he was worried that if he caught coronavirus, he would infect his vulnerable children.

You may have read about sections 44 and 100 of the Employment Rights Act 1996, which says that employees are protected from being subjected to a detriment, for example, being suspended or having their pay deducted, or being dismissed for exercising their right to leave their workplace.

But to be protected, the employee must have a ‘reasonable belief’ that their workplace poses a serious and imminent threat to them, or to others – including members of the public and their own families. This is a “day-one” right and unlike most unfair dismissal claims, employees do not need to have the usual two years of service to bring claim in the tribunal.

Mr Rodgers started working for Leeds Laser Cutting in 2019. He worked as a laser operator in a large warehouse which was described as being, “the size of half a football pitch.” Typically there were only five other people working in that area but just before the first national lockdown in March 2020, one of Mr Rodgers’ colleagues displayed symptoms of Covid-19 and was sent home to isolate.

The business remained open during lockdown and it informed its staff about the measures it had put in place so that they could continue working. These included the standard measures such as social distancing, wiping down surfaces, and staggering start, finish and break times to avoid people congregating. The company also provided masks for staff to use if they wanted to.

On 25th March Mr Rodgers had a cough which he attributed to the temperature and dust in the warehouse. Covid tests weren’t available at that time, but he obtained a self-isolation note until 3 April. He then sent a text message to his line manager telling him that he was going to stay off work ‘until the lockdown has eased’ because he was concerned about what would happen if he contracted Covid and infected his two vulnerable children. One child has sickle cell anaemia, the other was only seven months old.
His manager acknowledged the text and there was no other contact between them parties until 24 April, when Mr Rodgers found out that he had been dismissed. (That does seem somewhat odd – I presume they must have written to him, or perhaps he simply received a P45. He had not been working for them for long, so I can only assume that the business decided it did not need to go through the normal dismissal procedure with relation to the need to issue warnings or give him the opportunity to appeal the decision.)

Mr Rodgers sent his manager a text to ask why his manager to ask why his employment had ended. He took his case to the tribunal arguing that his dismissal was automatically unfair because he believed that he had exercised his legal right to leave his workplace under section 111 of the Employment Rights Act 1996.

The tribunal needed to consider whether Mr Rodgers reasonably believed that his workplace put him in “serious and imminent danger” from contracting Covid. It accepted that he had significant concerns about the Covid-19 pandemic generally and was worried about the impact it could have on his children at a time when there was huge uncertainty about how younger groups in society might be affected by the virus.

But, there was evidence presented to show that his concerns were not serious enough to have stopped him from driving a friend to hospital, and he didn’t provide any evidence to show that he believed his workplace put him in imminent danger. It was accepted that he accepted that he could have socially distanced himself from others at work and in the text he sent on the 29th March, there were no mentions of his working conditions at all – only the situation in general.

Tribunals in such cases will be looking at what knowledge was available about the virus at the time of the decisions. At that point, the government was advising people to keep their distance and to regularly wash their hands. It was possible for Mr Rodgers to do both of these things, so the tribunal in this case decided that Mr Rodgers had not shown enough evidence to demonstrate that he had been unfairly dismissed.

It is important to remember that this is just a tribunal case and therefore it is not binding on other cases. Each will be decided on the specific facts being presented.

If your employee has a reasonable belief that their workplace poses a serious and imminent risk, based on evidence about Covid-19 available at the time, they will be protected, particularly if they have written to you with their specific concerns about serious and imminent threats to their health or those of others. It is therefore very important that you listen to those concerns and take action to respond to address them and reassure your staff. If you are at all unsure as to what to do, refer to the sector-specific guidance available online https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19 and the HSE guidance at https://www.hse.gov.uk/coronavirus/working-safely/index.htm

If in doubt about what to do, seek advice early to minimise the risk of a similar claim.
Posted on 23 Apr 2021
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