Dismissal for refusing to attend work during Covid-19 lockdown: automatically unfair?

The Employment Appeal Tribunal (EAT) has found the dismissal of an employee, who refused to attend work during the first Covid-19 lockdown due to concerns about his vulnerable child, was not automatically unfair.

Background

The background to this case relates to the first Covid-19 lockdown in March 2020. At that time, little was known or understood about Covid-19 (including its origins, means of transmission, infection rates, outcomes or prognoses for those who contracted the virus, and other risk factors).  

Mr Rodgers, a laser operator for Leeds Laser Cutting Ltd, developed a cough on 25 March 2020. He left work as normal on 27 March 2020. Two days later, he emailed his manager stating that he would have to stay off work "until the lockdown has eased". He cited the fact that his child, who has sickle cell anaemia, would be extremely unwell if he caught the virus, as his reason for this.

Mr Rodgers did not return to work and, on 26 April 2020, he received his P45 from the employer. He subsequently brought a claim in the employment tribunal for automatically unfair dismissal on health and safety grounds.

What was the legal basis of the claim?

Mr Rodgers' claim against his former employer was based on the protection afforded by s.100(1)(d) of the Employment Rights Act 1996. This provides that a dismissal will be treated as automatically unfair where the reason for the dismissal is that "in circumstances of danger, which the employee reasonably believed to be serious and imminent, and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work".

Decision

The EAT agreed with the original tribunal hearing the case, which had ruled that Mr Rodgers had not been automatically unfairly dismissed. Important points mentioned were:

The employer had implemented various measures to protect against Covid-19, including: social distancing; wiping down surfaces; providing face masks; telling staff not to congregate at break times; and emphasising the importance of hand washing.

There was some scepticism as to whether Mr Rodgers believed that there were "serious and imminent" circumstances of danger at work that prevented his return to work, mainly because he:

• worked in a large workplace ("about the size of a football pitch") where, typically, only five people would be working; had remained at work from the date the lockdown was announced on 24 March 2020 until he left at his normal time on 27 March 2020;
• could generally maintain social distance at work;
• had not asked for a mask, although they were available;
• had, during his period of self-isolation, driven a friend to hospital; and
• had worked at a pub during the lockdown;had not raised meaningful concerns or complaints with the employer, which would have indicated
• to the employer his fears that there were circumstances of imminent danger in the workplace.

Rejecting the claim, the original tribunal had held that Mr Rodgers' decision to stay off work was not directly linked to his working conditions. His concerns about the virus were general and not attributable to the workplace. 

Take away points / observations

While this case failed on the facts, the EAT has acknowledged that there may well be situations brought about by the Covid-19 pandemic that cause an employee to reasonably believe there to be circumstances of serious and imminent danger. Therefore, we expect to see successful claims in future. Cases will always turn on their facts - consequently, the Covid-19 pandemic and issues it raises could give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent. 

It is important to bear in mind that successful automatically unfair dismissal claims do not require the minimum two years of continuous service. And, more importantly, the statutory cap on the compensatory award (currently £93,878) will not apply where the automatically unfair reason for dismissal is related to health and safety. The potential exposure to such claims is, therefore, far-reaching and we will closely monitor how this area of case law develops.

Covid-19 and health and safety concerns may crop up (and indeed have already cropped up) in the tribunal in converse situations: where the employer has instructed a vulnerable employee, for example someone who is older or pregnant, to stay away from the workplace to reduce the risks to their health and safety. RPC's employment team has experience of advising on these types of claim and has recently successfully defended an age discrimination claim in the employment tribunal against a major retail employer. In that case, the employer instructed all workers aged 60 or over to remain at home on full pay when the pandemic was still in its infancy and knowledge at the time indicated that workers of a certain age group were at significantly greater risk. 

The employee in question, aged 62, brought a claim, alleging age discrimination – he said that it was an act of direct age discrimination for older workers to be effectively excluded from the work place. He himself wished to attend work as normal. The tribunal found in favour of the employer – it ruled that, in the circumstances, the employer's actions were not age discriminatory – at the time the instruction was given for older employees to remain at home, little was known about Covid-19, but it was generally accepted and reported that age was a factor which was likely to increase the risk of serious illness.

If you or your organisation require assistance on this area, please get in touch with Charlotte Reid or Patrick Brodie.