Employee who left the workplace due to concerns over the risk of Covid-19 was not unfairly dismissed.

In the case of Rodgers v Leeds Laser Cutting Ltd ET1803829/2020, Judge Anderson found that Mr Rodgers had not been unfairly dismissed under sections 100(d) and (e) of the Employment Rights Act 1996 when he left his workplace due to covid concerns.

The Facts

Mr Rodgers was employed by Leeds Laser Cutting Ltd (the Employer), as a laser operator. His employment commenced on the 14 June 2019, this meant Mr Rodgers did not have the required length of service to pursue an ordinary unfair dismissal claim (for which two years continuance service is required).

Mr Rodgers has two young children at home, one of which has sickle-cell anaemia.

The Employer had implemented safety measures, such as social distancing and handwashing, in line with government guidance, prior to Mr Rodgers confirming he would not return to work. The Employer had also undertaken a risk assessment, which was conducted by an external professional.

Mr Rodgers left work on Friday 27 March 2020 and sent an email to his manager on the 29 March 2020, confirming he would not be returning to work ‘until the lockdown has eased’. He confirmed that he was concerned about the risk Covid-19 posed to his children.

The Employer dismissed Mr Rodgers a month later and Mr Rodgers issued a claim for automatic unfair dismissal, under sections 100(d) and (e) of the Employment Rights Act 1996. This protects employees against dismissal for exercising their right to leave the workplace or take steps to protect themselves, against any serious or imminent danger, which they reasonably believe they have been placed in.

The Judgement

Judge Anderson found against Mr Rodgers, and in favour of the Employer, for the following reasons:

• Mr Rodgers had not raised any concerns about his safety, prior to confirming he would not return to work on the 29 March 2020.
• Mr Rodgers confirmed in evidence that social distancing could be maintained, within the building, however, sometimes you were required to work together, for instance to carry something heavy.
• Mr Rodgers admitted he did not know what more the Respondent could have done, to enable him to feel safe.
• Mr Rodgers had breached government guidance, by driving his friend to hospital when he had been notified that he should self-isolate. This incident occurred the day after Mr Rodgers confirmed he would no longer be attending work.

Overall, Judge Anderson found that Mr Rodgers concern related to the virus generally, as opposed to a concern about his safety within the workplace, as such the protection under sections 100(d) and (e) of the Employment Rights Act 1996, did not apply.

Summary

The case provides some useful guidance, as it suggests that, provided an employer has implemented safety measures, in line with government guidance, an employee will not be able to claim automatic unfair dismissal under sections 100(d) and (e) of the Employment Rights Act. 

However, there are a few important points which should be noted, which are as follows:

• Particular emphasis has been placed on the fact Mr Rodgers raised no issues regarding his safety, prior to informing his employer he would not return to work until the lockdown had eased.
• The Judge took a dim view on the fact, Mr Rodgers broke government guidance on self-isolation, whilst also claiming he had safety concerns.
• The Judge considered the Employer’s evidence was clearer that Mr Rodgers and more consistent.
• The outcome may have been different, if Mr Rodgers had 2 years continual employment, and was able to pursue an ordinary unfair dismissal claim.

As such, the judgement is extremely fact sensitive, and I would advise employers to seek advice before taking action against an employee who indicates they do not want to return to the workplace for safety reasons.

The full judgement can be found here: Rodgers v Leeds Laser Cutting Ltd ET1803829/2020

If you require any advice, please do not hesitate to contact either myself or a member of the team on 01983 897003.