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Covid - Can employees refuse to return to work? The Appeal

Employment tribunals have been hearing cases where employees have complained that they did not fee safe at work. Until now, we have not had any Appeal Tribunal Cases to rely upon, but the outcome in the case of Rodgers v Leeds Laser Cutting has now been announced.

Mr Rodgers appealed the original decision against him. In reviewing the case, the Employment Appeal Tribunal (EAT) accepted that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented him from returning to the workplace.

However, on the facts of this particular case, the tribunal had found that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large (as had been demonstrated by his actions outside of work). The EAT concluded that even if the original tribunal had been wrong about this, it had been entitled to find that Mr Rodgers could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands. He had not sought to do so. For example, masks had been made available, but he had chosen not to use them. The appeal was dismissed.

This is only the first case to go to appeal, but it gives a good indication of the way the EAT is thinking. However, it must be remembered that each case will be assessed on the basis of the prevailing circumstances. If you have a much smaller workplace with the inability to ventilate the premises adequately and have not had appropriate measures in place, the outcome might not be so favourable to an employer.

For details of the original case see https://cheringtonhr.com/news/662 This was also discussed in the HR Solutions/ Cherington HR employment law update (a recording of the seminar can be found here: https://www.hrsolutions-uk.com/services/employment-law-seminar-2022/ )
Posted on 11 May 2022
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