16 April 2021 #Employment
As the ‘work from home if you can’ instruction is set to come to an end in June employers could face employees concerns about feeling safe in the working environment. In the case of Rodgers v Leeds Laser Cutting Limited, a Claimant was dismissed after he text his manager to say he would not be returning to work until ‘Covid restrictions eased’ as he was worried about infecting his vulnerable children.
The Respondent’s business was permitted to remain open following the Government’s lockdown announcement on 23 March 2020. One of the Claimant’s colleagues left work to self-isolate on 25 March after displaying COVID-19 symptoms. On 27 March 2020, the Claimant left work as normal but two days later text his manager to say he would not be returning to work until “Covid restrictions eased” as he was worried about infecting his vulnerable children.
After the Claimant was dismissed he alleged that he his dismissal was automatically unfair as he had exercised his legal right not to attend his workplace under sections 100(1)(e), (d) of the Employment Rights Act 1996. He did not have two years’ service allowing him to bring an ordinary unfair dismissal claim under s98 ERA.
What is the Law on dismissal?
Sections 100(1)(e), (d) protect employees from dismissal in circumstances where they reasonably believe that they are in serious or imminent danger at their place of work, and so take steps to protect themselves from that danger by not attending their workplace.
The Respondent’s premises was a large warehouse, roughly the size of half a football pitch, with only 5 people working on the premises ‘floor’ at the material time. The Respondent had undertaken a risk assessment in mid-March 2020, which recommended social distancing, wiping down surfaces as well as staggered start, finish and break times. These recommendations were in operation at the material time. The Respondent also offered masks to its employees and the Claimant did not wear one.
The tribunal also considered the government guidance at the time which centred on social distancing and handwashing, which the Respondent had enforced. The Claimant by his own admission said that it “was not hard” to social distance in the workplace and had not raised any concerns about his working environment with his employer before he left.
Due to the above, the tribunal concluded that the Claimant did not reasonably believe there were “circumstances of serious and imminent danger, within the workplace and therefore rejected the claim that the dismissal was unfair.
The employment tribunal decision is not binding but is the first judgement published of its kind considering s100 ERA in the context of COVID-19.
It is interesting as the Claimant tried to rely on the Secretary of State’s declaration made on 10 February 2020 under regulation 3(1) of the Health Protection (Coronavirus) Regulations 2020 that COVID-19 poses a “serious and imminent threat” to public.
The tribunal found that despite the fact that the virus had been described in those terms this “does not, of itself, satisfy this part of the statutory test”. The judge commented that “if it did, it seems to me any employee or worker could simply ‘down tools’ on the basis that the virus is circulating in society.”
Despite this judgement, employers should not assume that other similar cases will fail. This case had very particular facts. It is likely that each case of this type will consider government guidance at the material time and the measures which the employer implemented to protect health and safety, in line with guidance, at the material time too.
If you need any bespoke advice on health and safety, mask wearing, vaccinations or other implications COVID-19 has on your workplace, get in touch with one of our employment lawyers
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