Is a dismissal for refusing attend work because of COVID-19 concerns automatically unfair?
With lockdown restrictions beginning to ease and the vaccination programme continuing apace, employers across the country will be starting to consider a return to the workplace.
What happens though if an employee refuses to come in because they feel it’s unsafe?
The recent Rodgers v Leeds Laser Cutting Ltd employment tribunal gives us some insight.
Here, an employee brought a claim alleging his dismissal was automatically unfair because he refused to return to work in circumstances of, what he believed to be serious and imminent danger.
He had vulnerable children and told his employer that he had “no alternative but to stay off work until the lockdown has eased” due to concerns he might infect his children with COVID-19. The claimant was later dismissed because of this refusal to go into work.
The judge dismissed the employee’s claim.
While the judge recognised the employee had serious and understandable concerns about the risk of catching COVID-19, these weren’t specifically related to the workplace, but instead to the world at large.
Importantly, the employee had never raised particular concerns about workplace safety with his employer. As a result, the tribunal concluded the claimant’s decision to stay off work was not directly linked to his working conditions.
It added relying on the provision in this way would run the risk of allowing any employee to refuse to work in any circumstances simply by virtue of the pandemic.
The employment tribunal also found any belief that there were circumstances of serious and imminent danger were not objectively reasonable here because it was possible for all employees at this workplace to follow social distancing and the employer had followed the government workplace guidance available at the time.
What is noteworthy though is that while the employment tribunal did not find circumstances of serious and imminent danger on these facts, it didn’t rule out such a risk might exist in other circumstances.
This judgement is not binding on other employment tribunals and employers shouldn’t assume that similar cases will fail — particularly where employees may refuse to come into work during spikes in infection rates, or have particular reasons for being afraid, such as underlying health conditions.
Instead, this case should be seen as a useful reminder of the potential for automatic unfair dismissal claims if an employee is dismissed because he or she refuses to work due to a perceived risk of serious and imminent danger.
That said, employers in Scotland that have followed the government’s safer workplace guidance and implemented protective measures to mitigate the risk from COVID-19 may take some comfort from this case.