Claimant loses unfair dismissal claim over concerns about attending work due to COVID (Mr D Rodgers v Leeds Laser Cutting Ltd – 1803829/2020)

There has been little else at the forefront of most of our minds over the last year than the Covid-19 pandemic which has seized the globe and upturned it. There will doubtless be an influx of Employment Tribunal claims relating to various issues which the pandemic has thrown up for employers and employees alike.

One of these was recently considered by the Employment Tribunal at Leeds, and related to unfair dismissal as it relates to concerns about the pandemic.

The law relating to unfair dismissal

The provisions relied upon were taken from the Employment Rights Act 1996, Section 100:

1. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
   1. in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
   1. in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

The claim was that the Claimant had reasonably believed there to be serious and imminent circumstances of danger as a result of the pandemic, and that he believed that he had been dismissed because he raised these concerns.

The facts

Mr Rodgers was employed by the Respondent as a laser operator. During March 2020, he informed his employer that “unfortunately [he had] no alternative but to stay off work until the lockdown [had] eased”. His reasoning was that he had small children about whom he was concerned. There had been a suspected case of the virus at the warehouse.

The Employment Tribunal’s decision

EJ Anderson dismissed the claim, as he found that the Claimant’s concern related to the pandemic generally, not to the specific working conditions of the warehouse. The judge remarked that, if a concern regarding the virus itself were enough to meet the statutory test, then any employee or worker could simply ‘down tools’ on the basis that the virus was circulating in society.

The Claimant had not raised any specific concerns with his employer about the safety of the workplace, and had not taken appropriate steps to communicate them. Crucially, in the text exchange where he informed his employer he was to absent himself from work, there was no reference to the working conditions of the warehouse. As such, the Respondent would have had no way of knowing that this was the reason the Claimant was not coming to work.

The Employment Tribunal therefore dismissed the Claimant’s claim for automatic unfair dismissal.

Our lawyers’ comments on the case

Caroline Lewis, Senior Associate in the employment team at Redmans, commented on the case as follows: “The Employment Judge did conclude that conditions pertaining to Covid-19 could potentially amount to circumstances of serious and imminent danger in principle, and that that every case will need to be considered on its facts and merits.”

Link to judgment: https://assets.publishing.service.gov.uk/media/604a190cd3bf7f1d1281153e/Mr_D_Rodgers_v_Leeds_Laser_Cutting_Ltd_-Reserved_1803829.2020.pdf