Unfair dismissal – Rodgers VS. Leeds Laser Cutting Ltd

The Employment Appeal Tribunal has held that an employee who refused to return to work during the Covid-19 pandemic was not automatically unfairly dismissed.

The Employment Appeal Tribunal (EAT) has upheld the Employment Tribunal decision in the case of Rodgers v Leeds Laser Cutting Ltd that an employee who was dismissed after he refused to return to work during the COVID 19 pandemic was not automatically unfairly dismissed under S.100 of the Employment Rights Act 1996 (ERA) which applies where an employee refuses to return to the workplace or leaves in the circumstances of danger.

A risk assessment was carried out at the workplace by an external professional, but found that many of the recommendations were already in place to ensure safety. Nevertheless on 29 March 2020 the employee informed their line manager that they had no choice but to stay off work until the pandemic eased due to the fact that he had a child with sickle cell disease and a baby who could have unknown underlying health problems. The employee obtained a self-isolation note from the NHS until 3^rd April 2020.  On the 24 April 2020 the employee received a P45 in the post which lead to him bringing a claim for unfair dismissal under S.100(1)(d) and S.100(1)(e) ERA.

S.100(1)(e) applies where an employee takes reasonable steps to protect themselves or others from danger. The EAT held that a refusal to return to the workplace could only fall under S.100(1)(d) and not constitute as taking an appropriate step for the purpose of S.100(1)(e) and therefore this part of the claim was not engaged.

S.100(1)(d) ERA states an employee is automatically unfairly dismissed if the reason for the dismissal is that in the circumstances of danger an employee refused to return to work due to the fact that they believed the danger was serious and imminent and which they could not reasonably been expected to avert. The EAT accepted that the pandemic created at least some circumstance of danger at work and that the employee believed the circumstances to be serious and imminent, however they held that the risk of danger in the workplace was no greater than there was at large and questions the reasonableness of the employee’s belief. They provided a list of findings which countered the employee’s claim and ultimately led to their decision, including:

• The workplace was large with few employees and this meant the employee could generally keep a safe distance at work;
• The employee remained at work from the date of the announcement of lockdown until the 27 March 2020;
• The employee had not asked for a mask when these were available;
• The employee was found to have driven a friend to the hospital when he was meant to be self-isolating;
• The employee was working in a pub during lockdown.

For further advice and assistance please contact our Employment Law Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk