Returning to the office – what about Covid?
An employee who was dismissed after claiming Covid presented a ‘serious and imminent’ danger in the workplace loses their appeal.
The Court of Appeal recently upheld a decision that dismissing an employee for refusing to work due to the risk of contracting Covid was not unfair in the case of Rodgers v Leeds Laser Cutting Ltd
Background
An employee can claim they have been unfairly dismissed if they are dismissed for refusing to attend work if they reasonably believe attending work would put them in a ‘serious and imminent’ risk of danger which could not be averted.
In this case, the employee told their manager they would not attend the workplace until lockdown had eased and refused to attend work until they were dismissed. The employer had carried out a risk assessment and had taken a number of appropriate safety measures but the employee argued that no level of safety measures would have made him feel safe to attend work. The employee subsequently brought a claim for unfair dismissal.
Decision
The Employment Tribunal dismissed the claim accepting that, whilst the claimant had concerns about Covid generally, these circumstances did not satisfy the requirements for protection. The employee was found to have taken no steps to avert any danger, failed to raise any specific workplace dangers to their line manager and had been found to find alternative work at a pub during the pandemic.
The tribunal found that, where adequate safety measures are in place, it would be unreasonable for employees to leave the workplace solely due to the existence of a virus and the employee failed to show that they reasonably believed in a serious and imminent risk of danger which could not be averted.
Interestingly, the Employment Appeal Tribunal similarly concluded that the claimant did not consider their workplace any more dangerous than the world at large and, by following the Covid safe procedures implemented by the employer, the risk of danger could have been reasonably averted. The claimant went onto appeal this decision.
Finally, the Court of Appeal recently dismissed this appeal, finding that the Tribunal was correct in their decision. However, the Court of Appeal did confirm that an employee does not have to be in actual, objective danger for unfair dismissal to occur in these circumstances, they merely need to have a reasonable belief that there is a serious and imminent danger.
Comment
Employers who took steps to mitigate the risk of Covid infection in the workplace can be reassured that this decision should protect them from claims where employees feel a general sense of danger arising from Covid. Employers would be wise to continue assessing risk on an ongoing basis and implementing safety measures if necessary in order to ensure these dangers can be reasonably averted. An employer should take steps to ensure that employees can clearly perceive that action has been taken to avoid workplace risk.
Whilst Covid-related HR issues may be diminishing as the world moves on from the pandemic, this decision remains important when considering other dangerous circumstances faced by employees, such as adverse weather.
The Employment Team at Clarke Willmott are experienced in handling a wide range of Employment and HR issues. If you would like to discuss this article in more detail, or have any other Employment Law queries, please do not hesitate to get in contact with us.
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