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Employee refusing to return to work during pandemic fairly dismissed

View profile for Paul Burton
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Employee refusing to return to work during pandemic fairly dismissed

In Rodgers v Leeds Laser Cutting Ltd, the Employment Appeal Tribunal (EAT) confirmed that Mr Rodgers, who was dismissed after he refused to return to work during the COVID-19 pandemic, was not automatically unfairly dismissed. 

In this article, Employment Partner Paul Burton discusses this outcome and looks at what employers can take away from this case.

Rodgers v Leeds Laser Cutting Ltd: Case Background

Mr Rodgers was a laser operator, starting his employment with Leeds Laser Cutting Ltd in June 2019.  He worked in a large warehouse, usually with four other colleagues at a time.  

The company did bring in an external specialist to carry out a risk assessment in March 2020, when the pandemic struck. They recommended social distancing, sanitising surfaces, and staggering start/finish/lunch/break times, which the company followed.

Refusal to return to work

On 29 March 2020, having left work as normal the previous Friday, Mr Rodgers emailed his line manager, stating he had no alternative but to stay off work until the pandemic eased.

He highlighted the fact his child had sickle cell disease and another with underlying health problems.  Mr Rodgers obtained a self-isolation note from the NHS running to 3 April 2020.

Despite having the self-isolation note, evidence showed Mr Rodgers taking a friend to hospital on 30 March and he also worked in a pub during the lockdown.

An unfair dismissal?

The company went on to dismiss Mr Rodgers on 24 April 2020.  He brought a claim of automatic unfair dismissal on health and safety grounds under S.100(1)(d) of the Employment Rights Act 1996 (“the Act”).

What are health and safety grounds for unfair dismissal?

S100 provides that an employee is automatically unfairly dismissed if the reason for dismissal is 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’.

Mr Rodgers also relied on S.100(1)(e), which applies where the employee takes ‘appropriate steps to protect himself or other persons from the danger’.

What did the employment tribunal find?

The employment tribunal held that Mr Rodgers’ claims failed.  They agreed he had genuine concerns about the pandemic, but they were general in nature and not directly connected to his workplace.  He appealed to the EAT.

What about the employment appeal tribunal?

As stated, the EAT confirmed the employment tribunal’s decision.  

Mr Rodgers had argued that the employment tribunal had erred in law by concluding that, because his belief was one of a serious and imminent danger at large, his belief that his workplace presented a serious and imminent danger was not objectively reasonable.

Was there a reasonable belief of ‘serious and imminent danger’?

However, the EAT held that the employment tribunal’s decision was that Mr Rodgers considered his workplace to be of no greater a risk than there was generally.

As such, he did not have a reasonable belief that there were circumstances of danger that were serious and imminent that prevented him returning to his place of work.

What other factors were considered?

The employment tribunal had reasonably considered factors such as the warehouse was large and spacious, with few employees and that the company had put in place measures to mitigate the risk to employees of contracting the virus that were reasonable at the time. 

The fact Mr Rodgers also broke his own self-isolation note went against him as well. 

A specialist Employment Solicitor’s view

Employment Partner Paul Burton says: “While Mr Rodgers did himself no favours in this case, the important points to take from it is that, if an employer:

  • Took reasonable measures during the pandemic, and
  • Gave an employee every opportunity to return to work

Then it is unlikely any unfair dismissal claim will be successful.”

“The fact the company carried out a risk assessment in a timely manner and then implemented the recommendations went a long way to ensuring they could successfully defend the claims made by Mr Rodgers.”

What can employers take away from this case?

Paul continues: “Cases are still going through the tribunal system relating to S.100 of the Act so we may see some more decisions, but this case will bring comfort to those employers who acted reasonably during the pandemic.”

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