The law says that it is automatically unfair to dismiss someone who leaves work or refuses to return in circumstances of danger which they reasonably believe to be 'serious and imminent'. In Rodgers v Leeds Laser Cutting Ltd, the EAT held that it was not automatically unfair to dismiss an employee who refused to return to work during the first lockdown because of concerns about the risks posed by coronavirus (Covid-19).
Mr Rodgers worked as a laser operator in a large warehouse-type space, equivalent in size to about half a football pitch. In total, about five workers were typically present at any one time.
On 16 March 2020, one of Mr Rodgers’ work colleagues, who was displaying symptoms of coronavirus (Covid-19), was sent home and told to self-isolate. On 24 March, the day after the announcement of the national lockdown, the company confirmed that it would remain open. It had put a number of measures in place to protect against Covid-19, such as wearing masks and social distancing.
On 25 March, Mr Rodgers developed a cough that he attributed to the temperature and dust at work. He left work as normal two days later on Friday 27 March. On 29 March, he emailed his line manager to say that he had to remain off work until the lockdown had eased because he had a vulnerable child at home. His absence was covered by a self-isolation note until 3 April. However, he did not contact his employer again until 24 April when he sent a text asking why he had been dismissed.
He claimed automatic unfair dismissal contrary to section 100(1)(d) or (e) of the Employment Rights Act 1996 (ERA).
Section 100(1)(d) states that it is automatically unfair to dismiss someone who left or refused to return to their place of work in 'circumstances of danger which the employee reasonably believed to be serious and imminent and which he [sic] could not reasonably have been expected to avert'.
Section 100(1)(e) states that it is automatically unfair to dismiss someone who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other people 'from the danger'.
Dismissing his claim, the tribunal concluded that Mr Rodgers’ decision to stay off work was not directly linked to his working conditions but rather because of general concerns about the virus. In particular, he had not raised any concerns about his working conditions when he told his employer that he was going to stay away until the lockdown eased. His case was further undermined by his decision to take a friend to hospital in his car during the period he was self-isolating, as well as his decision to take a job in a pub during the pandemic.
Mr Rodgers appealed under section 100(1)(d) ERA only, arguing that the tribunal was wrong to conclude that because he believed that there was a generalised danger from coronavirus (Covid19) outside his place of work, he did not have a reasonable belief that his workplace presented a serious and imminent danger.
Dismissing the appeal, the EAT held that although the coronavirus (Covid-19) pandemic created at least some circumstances of danger at work and Mr Rodgers had genuine concerns (in particular about the safety of his children), that did not mean that he necessarily had a genuine belief that there was a serious and imminent danger in the workplace or elsewhere, which prevented him from returning to work. On the facts of this case, the tribunal was, therefore, entitled to find that he could not demonstrate a reasonable belief that there were circumstances of danger that were serious and imminent, at work or at large, that prevented him returning.
Even if the tribunal had erred on that point (which the EAT did not think it had), the EAT considered that Mr Rodgers could reasonably have taken steps to avoid those dangers, despite his concerns about the health of his children. For instance, he could have worn a mask, socially distanced himself, washed and sanitised his hands. It did not think there was anything further that his employer was required to do in addition to the precautions it had put in place early on in the pandemic.