Dismissal for refusing to work during Covid was fair

The case of Rodgers v Leeds Laser Cutting Ltd was first heard by the employment tribunal in January 2021, where the ET judge had to consider whether an employee who was dismissed for his refusal to work due to perceived dangers posed by the Covid pandemic was unfairly dismissed. The case has since progressed to the Employment Appeal Tribunal (April 2022) and most recently to the Court of Appeal (December 2022). This is the first Covid-related case the Court of Appeal has had to consider.

To recap, the case involved a claimant who started working in a warehouse in 2019, which was described to be the size of half a football pitch. In total, he would typically work with five other people each day. Following the first lockdown announcement in March 2020, the warehouse remained open, in line with government guidelines for essential services. The respondent put measures in place to control the risk of Covid transmission and keep workers safe, including social distancing, regular cleaning of workstations, staggered start and finish times, and voluntary use of facemasks, which were provided.

In late March 2020, the claimant developed a cough which he attributed to dust in the warehouse, but couldn’t get a Covid test to be sure, so decided to self-isolate. He obtained an isolation note from NHS111. He later texted his manager to inform him that he was going to stay off work until the lockdown had eased as he didn’t want to risk bringing Covid home to his children, as one was vulnerable due to having sickle cell anaemia. His manager responded to say, “Okay mate, look after yourself.”

No further communication took place until 24 April 2020 when the claimant received his P45 in the post, which led to him raising a claim for automatic unfair dismissal under s100 of the Employment Rights Act (1996). S100 refers to employees’ rights not to be subjected to detriment when taking reasonable steps to protect themselves or others from serious and imminent danger, which they can’t be reasonably expected to avoid. Specifically, the claimant asserted that he had been unfairly dismissed, as the reason for his non-return to work was due to the serious and imminent danger posed by the Covid pandemic, for which allowances should have been made. 

The ET and EAT accepted that the pandemic created some element of danger at work, but that the risk of danger was no greater in the workplace than anywhere else. They also questioned the reasonableness of the claimants’ belief. In making their decision, the employment judge specifically considered the fact that the workplace was large with few employees so keeping a safe distance was generally possible; the employee did not ask for a mask when they were available; the employee had driven a friend to the hospital when he was supposed to be isolating; and the employee was working in a pub during lockdown. As a result, his claim was dismissed. 

The Court of Appeal acknowledged that the law does not require the danger to be exclusive to the workplace; the Judge made specific reference to the fact that it does not matter whether the dame danger may be present outside the workplace, for example, when on a bus or in a supermarket. However, it also rejected the claim, reiterating that reasonable measures were in place to reduce the risk of Covid transmission and highlighting that the claimant did not take reasonable steps to avert the danger, since he continued to work in a pub and continued to complete other “normal” activities.

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