In Rodgers v Leeds Laser Cutting Ltd, the Employment Appeal Tribunal (EAT) has found that an employee dismissed for leaving work and refusing to return because he was worried about catching Covid and giving it to his vulnerable children, was not automatically unfairly dismissed.
The case concerned a claim under Section 100(1)(d) of the Employment Rights Act 1996 (ERA), which provides employees with protection against dismissal in circumstances where they leave their workplace and/or refuse to return because of a reasonable belief that the workplace poses a serious and imminent danger to them or others that they could not reasonably be expected to avert.
An employment tribunal found that Mr Rodgers had been fairly dismissed. He may have had general concerns about Covid-19, but they were not directly attributable to the workplace. Further, his actions (e.g. not wearing a facemask, working in a pub during lockdown and leaving his home during a period of self-isolation) did not support his argument that there were circumstances of danger which he believed were serious and imminent. The EAT agreed, concluding that the risk within the workplace was no more than the risk within society at large. The claimant’s former place of work was a large, sparsely-populated workspace and the employer had taken extensive measures to ensure the workplace was covid-safe, following a risk assessment. Furthermore, Mr Rodgers could have taken reasonable steps to avoid the danger, such as wearing a face mask and social distancing. The EAT therefore upheld the tribunal’s finding that Mr Rodger’s dismissal was fair.
This case is significant as it is understood to be the first time the EAT has considered a Covid-19 related dismissal. With more employers encouraging employees to return to the workplace, we may see more challenges under S100(1) of the ERA. This case, however, provides some reassurance for employers as it suggest that if they took effective steps to comply with government guidance about workplace safety and to reduce the risk of infection, they will be well-placed to defend such claims.
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