Employee sacked for refusing to return to work during Covid was not unfairly dismissed

In one of the first rulings concerning a Covid-related firing, an employee who didn’t return to work due to concerns about the pandemic was not unfairly dismissed, according to a recent Employment Appeals Tribunal (ETA).

In March 2020, Mr Rogers, who worked as a laser operator at Leeds Laser Cutting, developed a cough, initially thought to be related to humidity and dust in the workplace.

After a period of isolation, Mr Rogers emailed his employer to say that he would not return to work until lockdown had eased. In particular, he was concerned about the risk of infection to his two children – a vulnerable child with sickle cell anaemia and a seven-month-old baby.

His line manager initially responded to the email with, “ok mate, look after yourselves”. However, in April, Mr Rogers said he was told that he was “sacked for self-isolating”. After requesting an explanation in writing, his employers sent him his P45.

In response, Mr Rogers initiated an automatic unfair dismissal claim, arguing that he was sacked because he decided to stay off work, due to what he believed to be a serious and imminent risk of danger to life. In January 2021, Mr Roger’s claim was heard at an employment tribunal but was dismissed. The case subsequently went to appeal.

However, the ETA has now agreed with the earlier ruling, stating that, while Mr Rogers may have had genuine concerns, there was no evidence that he believed there were serious and imminent circumstances of danger preventing him from returning to work.

Mr Rogers worked in a warehouse the size of a football pitch, with only five employees on the job at any one time. Furthermore, the day after lockdown, the company let employees know it would implement Covid prevention measures. And, later that month, an external firm was appointed to carry out a Covid risk assessment which resulted in recommendations for social distancing, wiping down surfaces and staggering break times. The business had already applied most of these proposals and had shared this with staff.

The ETA ruled that Leeds Laser Cutting had taken steps to avert the danger of Covid infection in its workplace and that Mr Rogers could have avoided the risk by following the measures in place. Leeds Cutting Services was fully compliant with government guidance, and Mr Rogers never raised any issue with the safeguarding provisions.

The Court also discovered that Mr Rogers had taken a friend to hospital during isolation, worked in a pub during the pandemic, and would often not wear a facemask. As such, Mr Rogers’ behaviour during the pandemic contradicted his claims and the ETA did not believe that his workplace presented a more significant risk to his chances of catching Covid than the wider world.

Many employees used the Employment Rights Act and issues surrounding Health and Safety during the pandemic to avoid returning to work. However, most employers lived and breathed the weekly policy updates and constantly updated measures to reasonably reduce the risk. While it is difficult to challenge an individual’s feelings and beliefs over what they think is a “serious and imminent danger”, there are no guarantees that the Courts will uphold such claims. Similar cases could be successful, but this is a clear example of how each case will be judged on its own merits.