An employment tribunal has held that it was not automatically unfair to dismiss an employee who refused to return to work until after lockdown due to his fear of infecting his children with COVID-19. The case, whilst not binding on other tribunals, provides a reminder of the health and safety protection available in these circumstances and the importance of implementing appropriate COVID-19 safety measures.

What protection is there for employees?

The Employment Rights Act 1996 ("ERA") gives employees protection from dismissal and detriment where they reasonably believed there to be serious and imminent circumstances of danger and they leave the workplace or take appropriate steps to protect themselves from danger. 

The health and safety detriment protection to due be extended to workers from 31 May 2021.

What happened in this case?

In Rodgers v Leeds Laser Cutting Ltd, Mr Rodgers texted his manager that he would stay away from his place of work "until the lockdown has eased". Mr Rodgers feared infecting his children (a baby and a child with sickle-cell anaemia) with COVID-19. Mr Rodgers sought to rely on the ERA protection when he was dismissed for not returning to his workplace a month later.

What did the tribunal say?

The employment tribunal held that on the facts of this case, there was not a reasonable belief in serious and imminent workplace danger. The tribunal rejected Mr Rodger's argument that coronavirus had created serious and imminent workplace danger regardless of the actions that had been taken by the employer to protect its employees. Therefore, his claim of automatic unfair dismissal failed.

This case was very fact specific in that Mr Rodger worked in a very large warehouse-type space which typically included only five workers, and his employer had put in measures in place to protect employees against COVID-19 including handwashing and the need to socially distance following government safety guidance.

Mr Rodgers had also breached his notification to self-isolate and had not mentioned any concerns of workplace danger to his manager, or taken any steps to avert danger or raise concerns before leaving work and not returning.

Mr Rodger's decision to stay off work was not directly linked to his working conditions, but instead his concerns about coronavirus generally.

What is the key take away?

This decision is not binding and turned on the specific circumstances, particularly the fact that Mr Rodger's evidence was 'vague' and 'contradictory' and he hadn't raised any concerns with his employer before deciding to remain at home.

The case highlights the importance of adhering to the government's COVID-19 safety guidance and taking action to minimise the risk to employees. Doing so, may make it harder to show that the workplace is dangerous and so less likely that an employee can bring a successful claim under these provisions of the ERA.

Further information

Please get in touch with a member of the employment and immigration team should you wish to discuss anything raised in this blog. 

Practical guidance is also available for Workbox by Brodies subscribers at the Coronavirus and Tribunal Claims pages. If you would like to arrange an online demo or free trial to see how your business could benefit from Workbox, please click here


Gregor Murphy

Trainee Solicitor