Dismissal of employee who refused to work over concerns of infecting his children was not unfair

We’re starting to see Employment Tribunal Judgments trickle through now on covid-19 issues.

A tribunal has found that the dismissal of an employee who told his manager he would not return to work until after lockdown because he feared he would infect his children (who had ill health conditions) with COVID-19, was not automatically unfair

The claim was pursued under sections 100(1)(d) and (e) of the Employment Rights Act 1996, which provide employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger. The tribunal rejected an argument that COVID-19 created circumstances of serious and imminent workplace danger, noting that the employer had taken all reasonable safety precautions that the government advised at the time.

In Rodgers v Leeds Laser Cutting, the Tribunal heard that Mr Rodgers messaged his manager on 29 March 2020 to state that he would be staying away from his workplace “until the lockdown has eased” because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with COVID-19. A month later, he was dismissed. Mr Rodgers did not have sufficient service to claim ordinary unfair dismissal. Instead, he alleged that he had been automatically unfairly dismissed for exercising his rights under sections 100(1)(d) and (e) of the ERA 1996.

The tribunal rejected Mr Rodgers’ argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer’s safety precautions. It found that accepting this submission could lead to any employee being able to rely on sections 100(1)(d) and (e) to leave the workplace, simply by virtue of the pandemic.

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