covid-19 unfair dismissal

Cases of unfair dismissal based on Covid-19 circumstances are starting to trickle through the employment tribunal. No doubt claims of this nature will continue as employees are returning (or their employers wish them to return) to the workplace. This article covers what employers should be aware of.

The case of Rodgers v Leeds Laser Cutting Ltd ET1803829 is a good reminder of the importance of employers having suitable Covid-19 safety measures in place.

Having suitable safety measures reduces the likelihood of successful claims from staff on health and safety grounds that a workplace is dangerous.

Section 100 of the Employment Rights Act (ERA) provides protection to employees against dismissal on the grounds of exercising their right to leave the workplace where they reasonably believe there is a serious and imminent danger.

The Rodgers Covid-19 unfair dismissal case

In this case, Mr Rodgers texted his manager on 29 March 2020 stating that he would be staying away from the workplace until the lockdown had eased. The reason being that he was worried about infecting his vulnerable children. Mr Rodgers had a baby and child with sickle cell anaemia. A month later, he was dismissed.

It is worth noting that Mr Rodgers did not have sufficient qualifying length of employment to claim ordinary unfair dismissal, having been employed with Leeds Cutting Ltd for under two years. But, he was able to claim that he had been automatically unfairly dismissed for exercising his rights under sections 100(1)(d) and 100(1)(e) of the ERA, which do not require a qualifying period of service.

The results of the case

In this particular case, the Tribunal found that the employee had not been unfairly dismissed. If a reasonable belief of there being a serious and imminent workplace danger was found, it should be judged on what was known when the relevant acts took place. Here, it was found that such a belief could not be established and the claim was therefore unsuccessful. The following facts were particularly relevant:

  • Notwithstanding Mr Rodgers’ concern about COVID-19, he had breached self-isolation guidance by driving a friend to hospital on 30 March 2020 (the day after leaving work);
  • Mr Rodgers’ message to his manager did not include concerns about workplace danger and he could not show there had been any such danger; and
  • Mr Rodgers had not taken any steps to avert danger or raise concerns with his manager before removing himself from the workplace.

The Tribunal did not accept Mr Rodgers’ argument that Covid-19 created circumstances of imminent workplace danger, regardless of the precautions an employer may take.

It was relevant that in March 2020 government safety guidance advised hand washing and social distancing. The employer had implemented both of these precautions. Furthermore, the workplace was well spaced and there was a relatively small number of employees, so social distancing was possible to maintain. The employer had also made masks available to its staff.

This Tribunal decision is not binding and turned on its specific facts. But, it is a good reminder of the importance for employers to have appropriate Covid-19 measures in place and how this may help prevent successful claims in the employment tribunal.

For further information on other claims that an employer may expect as we return to workplace, please see our article here.

If you would like advice on the health and safety measures for your organisation or in relation to any claims, please get in touch with our Employment team who would be happy to assist.