Fair Dismissal of Employee over Covid-19 concerns and refusal to enter the workplace
As we move into the second year of the pandemic, a number of Employment Tribunal cases relating to Covid-19 issues are starting to be heard. The Employment Tribunal ('ET') has recently heard the case of Rodgers v Leeds Laser Cutting Ltd ET1803829/2020 and, on this occasion, found that an employee's dismissal after his refusal to return to the workplace due to concerns surrounding Covid-19 was fair.
Rodgers v Leeds Laser Cutting Ltd ET1803829/2020
The Claimant worked as a laser operator for the Respondent in a large warehouse building with five other people. At the start of the first lockdown in March 2020, the Claimant wrote to his manager to notify them that he would not be returning to the office until lockdown had eased. This was following two separate incidents relating to Covid-19: first, another member of staff contracting Covid-19 and, second, the Claimant being told to self-isolate following a cough.
The Claimant had two young, vulnerable children (one with sickle cell anaemia and the other only seven months old). The Claimant was concerned about what would happen if he contracted the virus and infected his children.
The Claimant's manager responded to him telling him to "look after [himself]". There was no further correspondence until 24 April 2020 when the Claimant was notified of his dismissal.
The Claimant brought a claim for automatic unfair dismissal.
What the ET Held
The ET held that the Claimant's dismissal had in fact been fair. This was on the basis that, although the Claimant had significant concerns about the pandemic and the impact it could have on his children, he did not provide any evidence that his workplace put him in imminent danger. The Claimant had also driven his friend to hospital during this time.
Furthermore, the Claimant accepted that he would be able to socially distance himself from others at work and he did not raise any concerns in his message to his manager on 29 March 2020.
During this time (March and April 2020), the Government had advised people to keep their distance and regularly wash their hands. These were all possible for the Claimant to do.
The Claimant had not worked for the Respondent long enough to bring an ordinary unfair dismissal claim, which would have succeeded as he was dismissed without warning or chance to appeal.
What this means for employers
While this decision fell in favour of the employer, it was very fact specific, and should not be taken as a general rule of thumb that employees can be dismissed for refusing to work after lockdown. Further, as a "first instance" Employment Tribunal decision, rather than one of the more senior courts, this decision will not be binding on any other court or tribunal.
Each matter will need to be reviewed on a case by case basis before establishing a final decision and it remains the case that employers should exercise caution in taking action against employees who have concerns about attending the workplace in the light of Covid-19. In any event, the proper procedures should always be followed before dismissing employees.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Valerie Bond to discuss any issues you are facing.