Refusing to come into work during lockdown

The Employment Tribunal has held, in the case of Rodgers v Leeds Laser Cutting Ltd, that an employee was not automatically unfairly dismissed following their refusal to come into work during the first coronavirus lockdown.

The claimant in this case commenced work in a warehouse in 2019, which was described as being ‘the size of half a football pitch’. Generally, he would work with around five other people. In early 2020, just before the first coronavirus lockdown, one of his colleagues displayed symptoms of COVID-19 and was sent home to isolate.

Following the implementation of lockdown on 23 March 2020, the warehouse remained open as it was not on the Government’s list of workplaces that needed to close. The organisation put mitigation measures in place to help stop the spread of the virus, which included social distancing, regular cleaning of workstations, staggered start and finish times, and the voluntary use of facemasks.

Two days later, the claimant self-isolated due to a cough, which as he was unable to get a COVID-19 test for at the time and so attributed it to the dust in the warehouse. He later sent his manager a text, informing him that he was going to stay off work ‘until the lockdown had eased’ as he did not want to risk bringing the virus home to his children, one of whom had sickle cell anaemia. The manager replied with, ‘okay mate, look after yourself’.

No further communication took place between the claimant and the organisation until 24 April 2020, when he discovered that he had been dismissed for unclear reasons. As a result, he brought a claim to the tribunal for automatic unfair dismissal on the basis of his ‘reasonable belief’ that the warehouse posed a serious and imminent threat to his family’s health.

The tribunal dismissed his claim.

In forming their decision, they carefully evaluated whether the claimant did have a ‘reasonable belief’ as outlined in the legislation. Whilst they accepted that he had significant concerns about the ongoing pandemic, in particular how this could impact his children should they catch the disease, they also called into question his actions as a result of this.

Crucially, the claimant had failed to specify to the organisation why he felt the workplace was unsafe and indeed had only outlined his intention to remain at home until lockdown was eased. He had refused to come into the warehouse despite agreeing that he would have been able to socially distance and had also failed to demonstrate why the other measures taken to keep staff safe, such as the additional cleaning, did not go far enough. The tribunal considered this to be ‘vague’ and ‘contradictory’ evidence.

The tribunal did, however, take issue with how the claimant was dismissed and noted that, whilst he had not been ‘automatically’ unfairly dismissed, had he been able to bring a claim for unfair dismissal, it likely would have succeeded.

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