Partner Sue Dowling, head of leading Thames Valley law firm Blandy & Blandy’s employment law team, looks at the recent case of Rodgers v Leeds Laser Cutting ET1803829/2020 and what it means for employees and employers.
With the UK’s first, national lockdown in response to the covid-19 pandemic now being over a year ago, it was only a matter of time before we saw a case on the subject reach an employment tribunal.
Rodgers v Leeds Laser Cutting ET1803829/2020 is one that has recently considered the question of whether it was automatically unfair to dismiss an employee who did not come to work, citing fears over catching the virus.
Rodgers was employed as a laser cutter and the nature of the business meant that staff could not perform their work from home. The tribunal (sitting virtually) heard evidence that the place of work was essentially a large warehouse where social distancing was possible and the respondent had put in place measures such as hand washing facilities to reduce the risk of spreading the virus. On 29 March 2020, Rodgers messaged his employer stating that he would be 'staying away from his workplace until the lockdown has eased'. He mentioned that he was worried about infecting his children (one with sickle-cell anaemia and a newborn) with covid-19.
Around a month later, having not returned to work, he was dismissed. As he did not have two years’ continuous service, Rodgers was not eligible to bring a claim of ‘ordinary’ unfair dismissal, but instead raised an ‘automatically’ unfair dismissal claim – on the basis that the reason (or principal reason) for the termination of employment was his reasonable belief in there being a serious and imminent danger at his workplace.
The employment tribunal accepted that Rodgers was very concerned about the pandemic and in particular, the risk to his children, but did not consider that this belief was objectively reasonable. He had not directly raised any concerns or formal complaints with his employer but instead seemed to have a more general fear. Rodgers could, however, reasonably have been expected to avert any dangers, for example by following the guidance at that time, and it was not appropriate to ‘absent’ himself from work without further explanation. His employer did not receive any indication that he was dissatisfied with the measures in place at the warehouse as Rodgers provided no real detail in support of his absence.
This case is interesting as the tribunal did not rule out that concerns in relation to the pandemic could apply to the ‘health and safety’ basis of an automatically unfair dismissal claim. However, here it preferred the more consistent evidence of the employer in needing to manage its business during the start of the pandemic over the claimant’s more ‘vague’ account, which included driving a friend to the hospital when he was supposed to be self-isolating.
It is also not clear whether Rodgers may have succeeded in a claim of ‘ordinary’ unfair dismissal, where his employer would have needed to carry out a fair process in relation to any termination. As a minimum, this would have involved a meeting where the individual could have expanded on any concerns. That said, this case should give businesses some comfort overall, that tribunals will recognise that employers who have put in place protective measures and followed the government’s guidance cannot be expected to allow continued absenteeism, particularly without any anticipated return date. The Judge was also alert to considering the situation at the time of March/April 2020 (i.e. before the use of face coverings was introduced). Watch this space as there will almost certainly be more covid-19 related tribunal decisions this year.