Threat of COVID-19 is not always a valid reason to leave the workplace…
Thursday 27th May 2021
An employee deciding not to return to work after isolating from Covid-19 was not protected from being dismissed for exercising his right to leave his workplace for health and safety reasons, as the Employment Tribunal decided in Rodgers v Leeds Laser Cutting Ltd.
Mr Rodgers worked for Leeds Laser Cutting Ltd in a large warehouse with only 5 other people. Throughout lockdown in 2020, the business remained open but introduced measures to keep staff safe. This included social distancing, disinfecting surfaces, staggering working hours to avoid groups congregating and providing masks. Mr Rodgers isolated in late March 2020 due to having Covid-19 symptoms. In early April he messaged his manager to tell him he would not be returning to work until Covid restrictions had eased as he was concerned that contracting Covid could harm his two vulnerable children. On 24 April 2020, Mr Rodgers was informed his employment had been terminated. Mr Rodgers brought a claim against his employer on the basis that he was protected from dismissal as he was exercising his right to leave his workplace where he believed there was serious and imminent danger.
The Employment Tribunal highlighted that employees are only protected from detriment or dismissal when exercising the right to leave the workplace if they have ‘reasonable belief’ that the workplace poses a serious risk to them or their family. Whilst Mr Rodgers’ concerns about his children were significant, he had not raised any concerns about his working conditions in his communications with his employer. Furthermore he acknowledged that he had been able to follow all government advice for safe working in his workplace. He did not provide any evidence to the Tribunal to show any particular danger his workplace posed and so it was found that he did not have ‘reasonable belief’ of the threat.
The facts of this decision are quite specific and employers should note that this decision is not binding. Companies must bear in mind that Covid-19, or any other health risk, will affect every employee differently. Where employees refuse to come into work because they do have reasonable belief that their workplace poses a serious and imminent health risk to themselves or their family, they will be protected. Where the employer dismisses the employee or subjects them to detriment and, unlike in this case, has not taken appropriate steps to protect staff, the employee’s case is likely to succeed.
The best way for employers to protect themselves from claims of detriment relating to Covid-19 safety concerns is to ensure they adhere to the government’s guidance on safe ways of working, and enter into discussions with employees to help alleviate any concerns they may have.
If you would like to discuss this further, then please contact one of our employment experts below. To view the full May Employment Law Update, click here: