Was a dismissal due to a refusal to work during Covid-19 due to concerns for vulnerable children unfair?

This article is in reference to Rogers v Leeds Laser Cutting Ltd [2022] EAT 69.

Background to the case

Mr Rodgers, who had a child with sickle cell anaemia, had worked as a laser operator for his employer since 14 June 2019.

Following the announcement of the first national lockdown, his employer announced that they would remain open and implemented measures to protect its staff after carrying out a risk assessment in the workplace, which was a large warehouse with typically only five staff members working on-site at any one time. On 25 March 2020, Mr Rodgers had a slight cough and obtained a note from the GP confirming he was to isolate until 3 April 2020.

On 29 March 2020, he messaged his line manager stating that he was going to stay off work until the lockdown had eased because he wanted to protect his children from the virus. His line manager responded by saying “okay mate, look after yourself”.

He was subsequently dismissed by his employer around a month later.

Employment Tribunal

Mr Rodgers claimed that he had been automatically unfairly dismissed for exercising his right to refuse to return to work because of a reasonable belief there was a serious and imminent danger. He did not have the two years’ service required to bring an ordinary unfair dismissal claim.

The Employment Tribunal (ET) held that Mr Rodgers had been fairly dismissed, as he was unable to establish a reasonable belief that there was serious and imminent danger in the workplace.

It found that Mr Rogers’ concerns were linked to the existence of the virus in general, and his decision to stay away from the workplace was not directly linked to his working conditions as he had refused to return to work until the lockdown was over.

His behaviour was also found to be inconsistent with his alleged concerns, for example, not wearing a facemask, leaving his home during self-isolation, and working in a pub during lockdown.

Employment Appeal Tribunal

The EAT upheld the ET’s decision concluding that the risk within the workplace was no more than the risk within society at large. It found that there were steps that Mr Rogers could reasonably have taken to avoid the dangers, such as social distancing, wearing a mask, sanitising and washing his hands.

As such, Mr Rodgers did not hold a reasonable belief that there were serious and imminent circumstances preventing him from returning to work.

What does this mean for employers?

It was relevant that his employer had carried out a risk assessment and taken precautionary measures to make the workplace COVID-19 secure in line with government guidance at the time.

It was also relevant that Mr Rogers had not raised any concerns with his manager about the danger.

With the ease of restrictions and many employees returning to the workplace, this case serves as a useful reminder that if an employee does refuse to return to work because they believe they are in serious and imminent danger, employers should investigate these further.

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