Employee who refused to return to work during the early stages of the Coronavirus pandemic found not to be automatically unfairly dismissed by Employment Appeal Tribunal (EAT)

In Rodgers v Leeds Laser Cutting Ltd, Mr Rodgers started employment in June 2019 as a laser operator. The business operated out of a large warehouse space where there were usually only 5 employees on site at any one time. A risk assessment carried out by an external professional at the start of the pandemic in mid-March 2020 recommended: (1) social distancing, (2) sanitising surfaces, (3) staggering start/finish/lunch and break times.

On Sunday 29 March 2020, having left work at a normal time on the preceding Friday, Mr Rodgers emailed his line manager stating that he had no alternative but to stay off work until the pandemic eased as he had a child with sickle cell disease who was at higher risk of serious illness should he contract Covid-19 as well as a 7-month baby who could have underlying health problems too. However, on 30 March 2020, Mr Rodgers transported a friend to hospital by car whilst both wore masks and his friend sat in the back of the car.

On 24 April 2020, Mr Rodgers received his P45 having had no other contact with his employer. He therefore brought a claim of unfair dismissal due to health and safety grounds under section 100 of the Employment Rights Act 1996 (the Act) which states that if an employee is dismissed for leaving or refusing to return to the workplace where s/he reasonably believed that there was a risk of serious and imminent danger, this is automatically unfair dismissal (so two years’ service is not required as with ordinary unfair dismissal claims). Mr Rodgers also argued that he took appropriate steps to protect himself or other persons from danger.

The first instance decision of the employment tribunal (ET) held that Mr Rodgers’ concerns about Coronavirus were general and not directly attributable to the workplace. The steps he took in being absent were not appropriate.

Mr Rodger’s appeal to the EAT was also dismissed. The EAT agreed that the pandemic had created some circumstances of danger at work and elsewhere. The ET had concluded that Mr Rodgers considered that his workplace constituted no greater risk than there was at large and that he did not consider that there were circumstances of danger that were serious and imminent, at work or at large, that prevented him from returning to his place of work.

The EAT accepted that an employee could reasonably believe that there are serious and imminent circumstances of danger that exist outside their workplace that could prevent them from returning to it and that such circumstances could fall within the Act. However, although Mr Rodgers had serious concerns about the coronavirus pandemic, especially the safety of his children, this did not mean that he necessarily had a genuine belief that there were serious and imminent circumstances of danger, either at work or elsewhere, that prevented him from returning to work. The EAT considered the following relevant findings of the ET:

1. The workplace was large and few people worked in it.
2. Mr Rodgers could generally maintain social distance at work.
3. Mr Rodgers remained at work from the date of announcement of lockdown on 23 March 2020 until he left at his normal finish time on Friday 27 March 2020.
4. Mr Rodgers did not ask for a mask when masks were available (although scientific and medical advice at the time was that masks made little difference and could, in fact, spread infection).
5. Mr Rodgers drove his friend to the hospital while he was meant to be self-isolating.
6. Mr Rodgers worked at a pub during lockdown.

Lastly, the EAT held that the ET was entitled to find that there were steps that Mr Rodgers could reasonably have taken to avert the danger at large and at work, even having regard to his concerns about the health of his children. For example, he could have socially distanced, worn a mask, sanitised and washed his hands.

These types of cases are slowly trickling through the tribunals and appeal courts, and all cases must be decided on their own facts and merits. Yet, it appears that if employers conducted risk assessments and ensured that secure covid measures were in place, employees are finding it challenging to bring successful claims subject to other factors such as having a disability or underlying health condition that would place them in the vulnerable or extremely vulnerable category. It would have been interesting to see the outcome of this case if Mr Rodgers had concerns about his journey to and from work had he travelled by public transport, or if he had not worked in a pub or transported his friend to the hospital.

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