• Facebook
  • Twitter
  • LinkedIn
Call us now: 01243 836 840   [email protected]
Pure Employment Law
  • Who We Are
    • Nicola Brown
    • Peter Stevens
    • David Jones
    • Debbie Poole
    • Linda Nye
    • Brenda Cherry
  • For Employers
    • Advice on HR and People issues
    • Investigations, Hearings and Appeals
    • Restructuring and Redundancy
    • Defending Employment Tribunal Claims
    • Dismissal of Senior Executives
    • Contracts, Handbooks and Policies
    • Employment Law Training
  • For Employees
    • Settlement Agreements
    • Workplace Issues including Disciplinary and Grievance
    • Bringing an Employment Tribunal Claim
  • Employment Law Events
  • Legal Updates
  • Testimonials
  • Vacancies
  • Contact us
  • Search
  • Menu Menu

Decision in Covid-related unfair dismissal claim

28 April 2021

Coronavirus speech bubble

We are now starting to see decisions from the Employment Tribunals relating to claims that were made at the start of the coronavirus pandemic. In one such matter, an Employment Tribunal was recently asked to consider whether an employee was automatically unfairly dismissed because he had refused to attend his workplace due to his fear of catching coronavirus and passing it on to his children. This was a claim for ‘automatic’ unfair dismissal for health and safety reasons, meaning that if the employee succeeded then there would be no limit on the compensation that the Tribunal could award him.

The case

In Rodgers v Leeds Laser Cutting Limited, Mr Rodgers was employed as a laser operator in a large warehouse-type space. There were typically five people working on the shop floor in March 2020. Following the announcement of the first national lockdown, Mr Rodgers’ employer informed their employees that the business was putting measures in place to allow everyone to work as normal. There were already some measures in place to protect against coronavirus, and the need for social distancing was by that time common knowledge. A risk assessment was carried out by an external professional in mid-March 2020 which recommended social distancing and wiping down surfaces, as well as staggering break and lunch times. The employer also held conversations with its staff members about handwashing and social distancing.

On 29 March 2020 there was a text exchange between Mr Rodgers and his line manager in which Mr Rodgers said he had no alternative but to stay off work until the lockdown eased. He pointed out that he had one child at high risk due to sickle-cell anaemia and also a 7 month old baby. He then obtained a self-isolation note for the period 28 March 2020 to 3 April 2020. Mr Rodgers was dismissed in April 2020.

As he did not have two years’ continuous service with his employer, Mr Rodgers could not bring a claim for ‘normal’ unfair dismissal. Instead, he brought a claim for automatic unfair dismissal under sections 100(1)(d) and (e) Employment Rights Act 1996, both of which have no qualifying minimum period of service.

Under these sections an employee is unfairly dismissed if:

“In circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, they left (or proposed to leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of their place of work, or

in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or other persons from the danger.”

Reasonable belief of serious and imminent danger

The Employment Tribunal found that Mr Rodgers could not have reasonably believed that there were circumstances of serious and imminent danger. He worked in a large space with a small number of colleagues and his employer had put in place measures to protect their employees in line with the Government guidance at the time. It also transpired that he had driven a friend to hospital on 30 March 2020 despite having been told to self-isolate. When he sent the text message to his Line Manager about not coming into work he had not expressed any concerns about health and safety at the workplace.

Could he reasonably have been expected to avert the danger?

Yes, said the Tribunal. Mr Rodgers could reasonably have been expected to avert any dangers by abiding by the guidance at that time and by using additional personal protective equipment if he wished to do so.

Did he take reasonable steps to protect himself or others (his children) from danger?

The Tribunal was not satisfied that it was appropriate for Mr Rodgers to absent himself from work entirely when it was not hard to socially distance at the workplace. He did not take appropriate steps to communicate concerns about his workplace to his employer who therefore could not have known that he was absenting himself from work due to any concern of serious and imminent danger.

Conclusion

It is important to remember that this decision was based on the particular facts of the case and was made at Employment Tribunal level, therefore it is not binding on other Tribunals. However, it highlights that if an employer has followed guidance on keeping their workplace “Covid secure” then this may well minimise the risks if an employee brings a claim for automatically unfair dismissal. If you are an employer concerned about issues being raised by your employees as workplaces continue to re-open, then we can assist you.

If you are an employer dealing with issues arising from the coronavirus pandemic, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.
Share this article
  • Share on Facebook
  • Share on Twitter
  • Share on WhatsApp
  • Share on LinkedIn
  • Share on Reddit
  • Share by Mail

Join our mailing list

* = required field
Mailing Lists


Recent Legal Updates

  • Can long Covid be a disability? 29th June 2022
  • Employer unfairly counted disability-related absences when dismissing 29th June 2022
  • Did an Employment Tribunal correctly award an uplift for failure to follow the ACAS Code in a sham redundancy case? 29th June 2022
  • Without prejudice negotiations – what is unambiguous impropriety? 29th June 2022
  • Does referring to a man’s baldness at work amount to sexual harassment? 25th May 2022
Link to: Contact Us

Any questions? Why not get in touch!

Our advice is always given in plain English without any waffle, and we focus on providing practical solutions to our clients’ problems.

Contact us

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
[email protected] | Tel: 01243 836840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

DISCLAIMER

The information contained in this website is for general information purposes only. The information is provided by Pure Employment Law and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

Privacy Policy | Cookies Policy | Terms & Conditions | How to make a complaint | Sitemap

© Pure Employment Law 2022

Scroll to top

This site uses cookies. By continuing to browse the site, you are agreeing to our use of cookies as defined in our cookie policy.

Accept Cookie Policy

Cookie and Privacy Settings



How we use cookies

We may request cookies to be set on your device. We use cookies to let us know when you visit our websites, how you interact with us, to enrich your user experience, and to customize your relationship with our website.

Click on the different category headings to find out more. You can also change some of your preferences. Note that blocking some types of cookies may impact your experience on our websites and the services we are able to offer.

Essential Website Cookies

These cookies are strictly necessary to provide you with services available through our website and to use some of its features.

Because these cookies are strictly necessary to deliver the website, refusing them will have impact how our site functions. You always can block or delete cookies by changing your browser settings and force blocking all cookies on this website. But this will always prompt you to accept/refuse cookies when revisiting our site.

We fully respect if you want to refuse cookies but to avoid asking you again and again kindly allow us to store a cookie for that. You are free to opt out any time or opt in for other cookies to get a better experience. If you refuse cookies we will remove all set cookies in our domain.

We provide you with a list of stored cookies on your computer in our domain so you can check what we stored. Due to security reasons we are not able to show or modify cookies from other domains. You can check these in your browser security settings.

Google Analytics Cookies

These cookies collect information that is used either in aggregate form to help us understand how our website is being used or how effective our marketing campaigns are, or to help us customize our website and application for you in order to enhance your experience.

If you do not want that we track your visit to our site you can disable tracking in your browser here:

Other external services

We also use different external services like Google Webfonts, Google Maps, and external Video providers. Since these providers may collect personal data like your IP address we allow you to block them here. Please be aware that this might heavily reduce the functionality and appearance of our site. Changes will take effect once you reload the page.

Google Webfont Settings:

Google Map Settings:

Google reCaptcha Settings:

Vimeo and Youtube video embeds:

Other cookies

The following cookies are also needed - You can choose if you want to allow them:

Privacy Policy

You can read about our cookies and privacy settings in detail on our Privacy Policy Page.

Privacy Policy
Accept settingsHide notification only