COVID Related Claim Goes To Employment Tribunal

Rodgers v Leeds Laser Cutting is one of the first pandemic related claims to be heard in the Employment Tribunal. 

Mr Rodgers a laser cutter, had less than two years’ service, so lacked the service to bring a claim for ‘ordinary’ unfair dismissal, he brought his claim under Section 100 of the Employment Rights Act 1996.  This makes it automatically unfair to dismiss an employee who refuses to return to his workplace in response to some danger which he reasonably believes to be serious and imminent and which he could not reasonably be expected to avert. This claim can be brought by employees with less than two years’ service.

Mr Rodger’s worked in a large warehouse space with typically five people working on the shop floor.  On 16 March a colleague was sent home with Covid symptoms.  Mr Rodgers had been working with the colleague on the day he was sent home and some time later he developed a cough, though he put this down to temperature and dust at work.

Following the first lockdown in March 2020 the employer announced that measures were being put in place to allow staff to work as normal.  A risk assessment was carried out and there were conversations with staff in relation to safety measures, including social distancing and handwashing.  The Tribunal accepted that it was possible for Mr Rodgers to distance at work for the majority of his role, there were a few occasions when it had not been possible, but he had not complained at the time.  There was a mask dispenser, it was empty, but Mr Rodgers had not asked for a mask or commented that it was empty.  Mr Rodgers had been sent out to make deliveries without a mask, but this was not a direct part of his role, it helped his employer but he wasn’t required to undertake these tasks, nor did he raise concerns at the time.

Mr Rodgers left work at the normal time two days after he developed a cough and failed to return.  When chased by text a couple of days later, he explained that he was staying off ‘until the lockdown has eased’ because he had a high risk child.  He provided a self-isolation note.  Then neither Mr Rodgers or his employer made contact and eventually Mr Rodgers was dismissed.

The Tribunal found that Mr Rodgers did not raise concerns to his employer indicating that he thought there was imminent danger at work.  It accepted that he had significant concerns about the pandemic, but it found that the decision to stay off work was not directly linked to his working conditions but that his concerns about Covid-19 generally.  During his self-isolation period, Mr Rodgers took a colleague to hospital by car during and the Tribunal said that this was difficult to reconcile.  Mr Rodgers had accepted that it was not hard to social distance at work in line with government guidance at the time.

Taking all of this into account, the Tribunal did not accept that Mr Rodgers reasonably believed that there was serious and imminent danger at work.  He did not indicate that he would return when the workplace was safer, but rather that he would return when lockdown was over.  Given the workplace size and small number of employees, any belief that there was serious and imminent danger would not be objectively reasonable.  Mr Rodgers was able to avert any dangers by following the guidance to social distance, using PPE and regularly washing his hands.  He did not raise any complaints about the measures in place and he was vague about any conversations that did take place.  In the circumstances, it was not appropriate to absent himself from work entirely when he could socially distance and he had not raised any complaints about rare times when he was not able to social distance. 

The Tribunal found that Covid-19 conditions could amount to circumstances of serious and imminent danger in principle but it did not consider that they did so in Mr Rodger’s case.

So to be able to rely on this provision, to reasonably remove themselves from work, employees will need to point to a clear and specific danger, communicate this to their employer and give the employer a chance to put it right.  The employee will need to be able to show that they were unable to avert the danger despite following individual precautions and following Covid-19 guidance.  If employers are met with these types of concerns they need to listen, assess whether it is reasonable and if so what can be done to minimise the danger.

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