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An Employment Tribunal found that an employee was not automatically unfairly dismissed when he was dismissed for failing to attend work during the first national lockdown.
In the case of Rodgers v Leeds Laser Cutting Ltd, in mid-March 2020, Mr Rodgers began a self-imposed self-isolation period, having worked alongside a colleague who displayed Covid-19 symptoms. Mr Rodgers indicated that he intended to continue his isolation for the entirety of the lockdown on the grounds that he had no choice, as his immediate family members were vulnerable.
Leeds Laser operated from a very large warehouse. It commissioned an external risk assessment and put in place measures, including social distancing, to ensure that it could continue operations as normal despite the pandemic. Leeds Laser’s measures also included cleaning, providing face masks and staggered clocking in and clocking out times.
Leeds Laser took a decision to dismiss Mr Rodgers due to his continued absence in late April 2020.
Mr Rodgers brought a claim in the Employment Tribunal asserting that he had been automatically unfairly dismissed on the grounds that the reason for his dismissal was that he had refused to attend work in circumstances where he reasonably believed that his place of work was dangerous. Leeds Laser defended the claim. The Employment Tribunal did not agree that Mr Rodgers had been automatically unfairly dismissed on these grounds.
In coming to its decision, the Employment Tribunal made several findings of fact, including that:
Accordingly, the Employment Tribunal was not satisfied that Mr Rodgers reasonably believed there to be a serious and imminent risk due to conditions at his workplace or that Mr Rodgers’s refusal to return to work until the lockdown had ended was an appropriate step to protect himself or others from danger.
The decision of an Employment Tribunal is not binding in relation to any other case.
Each case will turn on its own particular facts. However, this case provides a helpful illustration of how health and safety cases will be approached by an Employment Tribunal, especially in the context of the Covid-19 pandemic.
Despite the general trend towards the relaxation of Covid-19 restrictions, employers considering the return of their workforces to the workplace must remain mindful of the requirement that workplaces must be Covid-safe in accordance with government guidelines. It is perhaps inevitable that some employees may have concerns about returning to the workplace or even refusing to return due to health and safety fears. Employers should ensure that:
No decision to dismiss an employee should be made lightly in these circumstances. Mr Rodgers was not successful in demonstrating that he benefitted from the special protection afforded in health and safety cases. However, had Mr Rogers acquired the two years’ service required to make an ordinary claim of unfair dismissal or had Mr Rodgers’s case involved issues of discrimination, the outcome for Leeds Laser may have been very different.