Covid restrictions have been lifted and everyone is returning to normality, but the Covid related employment cases are beginning to filter through.
In Rodgers v Leeds Laser Cutting Ltd, the issue was whether it was automatically unfair to dismiss an employee who refused to attend work over concerns about the risks of COVID-19 to his vulnerable children.
In this case, Mr Rodgers was a laser operator. He refused to attend work during the first national lockdown as a result of him having vulnerable children and the concern that they would become very ill if they caught Covid-19.
A month later Mr Rodgers was dismissed. He brought a claim alleging that his dismissal was automatically unfair because he had exercised his right not to return to the workplace to protect himself from circumstances of danger, which he had reasonably believed were serious and imminent and which he could not reasonably have been expected to avoid.
The Tribunal dismissed the claim. The Tribunal did not accept that Mr Rodgers held a reasonable belief that there was a serious and imminent danger which was preventing him from returning to work and found that the workplace posed no great risk. The Tribunal also took into account that Mr Rodgers worked at a pub during lockdown, he chose not to wear a face mask and, when he was self-isolating, he had driven someone to hospital. Mr Rodgers appealed.
The EAT upheld the decision of the Tribunal. The EAT accepted, in principle, an employee could reasonably believe that there is a serious and imminent circumstance of danger that exists outside their place of work that could prevent them from returning to it. The EAT, however, found that the Tribunal had found this not to be the case i.e. that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious or imminent at his workplace or at large. The EAT held that the Tribunal was entitled to find that there were steps that Mr Rodgers could reasonably have been expected to take to avoid danger such as wearing a mask, sanitising and washing his hands and socially distancing. The appeal was dismissed.
This decision will certainly provide some comfort to employers especially to those who put in place measures to provide a safe workplace for their employees during the pandemic. Claims such as in this case where an employee reasonably believes that there is serious and imminent danger, will very much be fact specific.