Was it unfair to dismiss an employee for refusing to return to work during the pandemic?

11 May 2022: Under s100 Employment Rights Act 1996, it can be ‘automatically’ unfair to dismiss someone who refuses to return to the workplace in circumstances of danger (for example where there is unsafe machinery the employee has to use). In an ‘automatic’ unfair dismissal claim, two years service is not required. But did s100 also apply when an employee refused to return to work during the pandemic due to the risk of Covid?

In Rodgers v Leeds Laser Cutting Ltd 2022, during the first lockdown a risk assessment recommended social distancing, sanitising surfaces, and staggering start/finish/lunch/break times, when five employees were typically on site at any one time. Mr Rodgers said he would stay away until lockdown ended, because his child (with sickle-cell) was vulnerable.

The company dismissed him and Mr Rodgers claimed ‘automatic’ unfair dismissal under s100 ERA.  The claim failed, and the Tribunal concluded on the facts that he did not reasonably believe that there were circumstances of danger that were serious and imminent, that prevented him returning to his place of work. Mr Rodger’s concerns did not directly relate to the workplace.

The Employment Appeal Tribunal agreed.  On the facts, Mr Rodgers did not believe the risk in the workplace to be any more than in the general environment.  The fact that Mr Rodgers had genuine concerns about the Covid pandemic and the safety of his children, did not mean that he necessarily had a genuine belief that there were serious and imminent circumstances of danger that prevented him from returning to work. There were steps that Mr Rodgers could reasonably have taken to avert the danger both in and outside work, such as wearing a mask, socially distancing, sanitising and washing his hands.

Each case turns on its own facts, but Mr Rodger’s claim gives an indication of the approach to the Tribunal to this situation. If Mr Rodgers had had over two years’ service, he could have brought an ordinary unfair dismissal claim if a fair procedure had not been followed.  Alternatively he could have claimed associative disability discrimination in relation to his child’ sickle cell anaemia or possibly indirect race discrimination.

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