Blacks Bulletin - Employment Law - Refusal to attend work due to COVID-19
Refusal to attend work due to COVID-19
Following ‘Freedom Day’, the Government’s “stay at home” instruction has ended. However, notwithstanding this, a greater number of employers are coming across employees who refuse to return to work because of the risk that COVID-19 continues to present.
A recent case in the Leeds Employment Tribunal (ET) gives employers some guidance on how to approach such situations.
In Rodgers v Leeds Laser Cutting Limited, the employee refused to return to work during lockdown because he was fearful of potentially contracting COVID-19 and passing it on to his vulnerable children. Mr Rodgers was later dismissed by the employer without process. Mr Rodgers had less than the two years’ service required to bring an (ordinary) unfair dismissal claim. Instead, he brought a claim of automatic unfair dismissal, alleging that he had been dismissed in breach of sections 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA).
Sections 100(1)(d) and (e) ERA protect employees from dismissal where the reason was (respectively) that:
- in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work; or
- in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.
In this case, Mr Rodgers sought to argue that, due to the pandemic, there was a danger that was serious and imminent if he returned to work.
Mr Rodgers’ claim failed, with the ET finding that the circumstances of his case did not satisfy the criteria within sections 100(1)(d) and/or (e). The employer had carried out a risk assessment and operated COVID-secure premises (so far as was achievable) in which social distancing was in operation and PPE was provided. The ET identified that, at no time prior to his dismissal, did Mr Rodgers raise any specific concerns with the employer about any perceived danger at the workplace; instead, his concerns related to the general risk of contracting COVID-19 if he so much as left his own house.
This case highlights the fact that to succeed in a claim of this nature, the employee must identify a real (or reasonably perceived) danger that exists at their workplace which they are seeking to avoid and bring it to the attention of the employer. A general fear that they may be exposed to some non-specific danger is not enough to engage the protections of sections 100(1)(e) and (d).
As ever, this comes with a warning for employers to ensure that they think carefully before dismissing employees who refuse to return to the workplace citing health and safety reasons. The employer must ensure that they have taken the appropriate steps to ensure the working environment is safe and deal with any concerns raised by employees who are fearful of returning to work following lockdown.
If you have any questions about employees returning to the workplace after lockdown, please e-mail Paul Kelly at PKelly@LawBlacks.com