The Court of Appeal recently confirmed that an employer who took appropriate precautions to protect their employees from COVID-19 was permitted to dismiss an employee who refused to attend work during lockdown. This decision should reassure employers who followed Government guidance to reduce COVID-19 transmission. Your actions will help protect you against claims for unfair dismissal if an employee refuses to attend work due to the risk of catching COVID-19.
However, you should be aware that the outcome of an unfair dismissal case can depend on the particular circumstances of each situation.
We’ve set out a brief outline of the case and why it is important below.
What happened in this case?
Darren Rodgers, an employee of a laser cutting business in Leeds, advised his manager in March 2020 that he would be staying away from the workplace until the COVID-19 virus ‘calms down’. He stated that he was worried about the risk of COVID-19 infection as he had vulnerable children (a baby and a child with sickle cell anaemia who was at high risk from COVID-19 infection). However, he did not raise any specific concerns about the way his workplace was being operated or ask for any improvements to be made, and his employer had put in place the recommended health and safety measures including social distancing, ventilation, hand washing, and making masks available.
On 26 April 2020 Mr Rodgers was dismissed from work due to being absent without leave or explanation. He argued that he had been unfairly dismissed because he had refused to return to work due to a serious and imminent danger (ie the risk of catching COVID-19).
Did Mr Rodgers win his case?
No. The employment tribunal and Court of Appeal did not agree with his claim of unfair dismissal. They discussed a number of factors when deciding that he did not have a reasonable fear of serious and imminent danger at the workplace, including that:
- before refusing to attend work, he did not object to any of his employer’s work practices, and he did not raise concerns about improving health and safety practices with his employer or engage with his employer while he was off work;
- the workplace was a large warehouse-type space which allowed for social distancing and his employer had put reasonable precautions in place such as ventilation, hand washing and masks to reduce COVID-19 risks; and
- his concerns were of a general nature around catching the virus and passing it to his children, and were not directly caused by his workplace.
The Court of Appeal also advised that employees could not rely on a fear of catching COVID-19 while travelling into work as a basis for refusing to attend work.
This case provides reassurance to employers who followed the relevant COVID-19 guidance during the height of the pandemic. Provided employers took reasonable steps as required by Government guidance to protect their staff from COVID-19 risks, it will be hard for staff to win a claim of unfair dismissal due to their belief in COVID-19 being a serious and imminent danger.
You can find further guidance on dismissal procedures and specific dismissal situations in our Q&A.
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Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.