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[Employment] What if an employee doesn't want to return to work because of Covid?

09 July 2021

John Clinch


Just as English workers are set to return to the workplace on 19 July, we are starting to see the first employment tribunal decisions on pandemic-related claims.  All sorts of novel issues have sprung up, not least furlough leave (a first for UK employment law) and we’ve already seen disputes around pay, holidays and work location.  One interesting question is whether employees can use a little-known rule to allow them to leave the workplace for safety reasons - in this case, because of fear of catching or passing on Covid.  The first tribunal case on that has now been decided, Rodgers v. Leeds Laser Cutting Limited.

What can employees do if a workplace is unsafe?

If there is a ‘serious or imminent’ danger an employee can leave, or refuse to return to, a place of work or take steps to protect themselves or other people.  If an employee is dismissed for this, it is automatically unfair and they do not need two years’ service to make a claim (section 100 of the Employment Rights Act 1996).

Does the workplace actually have to be dangerous?

No, but the employee has to reasonably believe that a danger is serious and imminent.   This means that they need to have the belief and that belief has to be objectively reasonable.  And the danger has to be one that the employee could not reasonably have been expected to avert themselves - i.e. do something to mitigate or avoid it.

What does this have to do with Covid-19?

The Covid-19 pandemic counts as a danger for the purposes of the law.  Of course, the danger is receding significantly, for now, because of the mass vaccination programme.  But at the beginning of the pandemic, the only tools we had were social distancing and hygiene measures.  We should remember that we have learned a lot about the virus since it first appeared although it was clear even early on that the virus, although deadly, had a very mild effect on children.

What was the tribunal case about?

This was the world in which Mr Rodgers was dismissed by Leeds Laser Cutting Limited in late March 2020, just after the start of first lockdown.  Mr Rodgers had to physically attend work to do his job as a laser operator.  Even though he worked in a large warehouse environment and was able to maintain social distancing, he decided to absent himself because, as he said in a text message to his boss, of the risk of catching the virus and passing it to his two children (one of whom had sickle-cell anaemia).   He said that he was going to stay at home ‘until the virus calms down’ and got then got a self-isolation note from the NHS.  However, that didn’t stop him driving someone to a hospital during that period and nor did his wish to stay at home prevent him from doing some pub work.

What did the tribunal decide?

The tribunal held that, although the claimant had genuine concerns, he did not have a belief about a danger within the workplace but that the danger was all around.  He had not raised particular concerns with management.  Also, his workplace was large and the workforce small and it was clear that one way to avoid the virus was to maintain social distancing - so he could do that to avert the danger.  The tribunal concluded he did not have a reasonable belief about a serious and imminent danger, that it was not appropriate for him to leave the workplace and that his dismissal was therefore fair.

What are the implications of this case?

The decision does not bind other tribunals though it does illustrate the approach that a tribunal might take when faced with similar facts.  But the background picture has changed considerably since Mr Rodgers absented himself from his workplace. With mass vaccination, general health and safety concerns are abating even though the virus is again spreading rapidly. And, critically, the government’s health and safety guidance on workplaces is due to be relaxed significantly as from 19 July in England. This makes it more likely that anyone leaving the workplace or refusing to return after working from home would not have a ‘reasonable belief’ that there was a serious and imminent danger. That said, it remains the case that, if any workplace ignores health risks and safety guidance, some employees may then be able to walk out and be protected from dismissal.

If you require any assistance on managing the return of your staff to the workplace, or if staff are raising health and safety concerns, please contact us.

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09/07/2021 - [Employment] What if an employee doesn't want to return to work because of Covid?

Solicitor/Senior Associate/Employment

John Clinch