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  • Overview

    An employment tribunal was recently called to decide on whether the dismissal of a laser operator was automatically unfair. Rodgers v Leeds Laser Cutting Ltd involved an employee who was dismissed after refusing to return to the workplace until ‘lockdown restrictions eased’ because he was worried for the health and wellbeing of his children who were particularly vulnerable to COVID-19. The tribunal decided that, on the facts, the dismissal was not unfair and that the company had taken all reasonable steps to ensure the safety of their employees in the workplace. In this piece we analyse the reasoning of the tribunal and discuss what repercussions, if any, this could have for similar cases which arise over the summer as the country begins to unlock national restrictions.

    The Law

    Section 44 of the Employment Rights Act 1996 protects employees from suffering any detriment as a result of being exposed to dangerous health and safety environments. Similarly, Section 100 states that employees that exercise their right to leave a dangerous workplace will be protected from dismissal or other sanctions. These rights are implied into any employment contract and there does not need to a minimum term of service.

    To invoke these rights, an employee must have a ‘reasonable belief’ that the workplace poses a serious imminent threat to their own health and safety, or another’s (including their own families).

    The decision in Rodgers v Leeds Laser Cutting Ltd

    Mr Rodgers, the Claimant, was a laser operator who worked in a warehouse with five other workers. Despite one of the workers falling ill with suspected COVID-19, the warehouse remained largely open during the March 2020 lockdown and the business employed various COVID-19 safeguards such as social distancing, regular cleaning and staggering the shifts of the workers. Towards the end of March, Mr Rodgers suddenly fell ill and was signed off work after giving his employer a self-isolation note that he had obtained online. Mr Rodgers also told his employer that he would stay off work “until the lockdown has eased” and his employer appeared to initially accept this. Mr Rodgers’ reason for not returning to the workplace yet was because of his two children, who were particularly vulnerable to COVID-19. Almost a month later, Mr Rodgers was informed by his employer that he had been dismissed and soon he brought a claim to the employment tribunal. Mr Rodgers invoked his rights under Section 100 of the Employment Rights Act, in that his dismissal was automatically unfair as he was exercising his right to leave a workplace which he perceived as dangerous to himself and his family.  The tribunal dismissed his claims and focused on the circumstances of the case. Crucially, Mr Rodgers had breached self-isolation guidance when he drove a friend to the hospital around the same time and also failed to properly communicate his concerns to his employer. The company had also implemented all COVID-19 safety protocols which were known at the time (mainly handwashing and social distancing). As such, the tribunal stated that Mr Rodgers had failed to establish the ‘reasonable belief’ needed to invoke Section 100 of the Employment Rights Act.

    Our thoughts

    The tribunal certainly erred on the side of caution with their decision. Had they not, any employee would be free to not work, simply by virtue of the pandemic. However, it is important to mention that this case is not binding and cases will continue to be decided on their facts. The situation could have been very different if the company had failed to implement the correct COVID-19 safety measures or if Mr Rodgers was clearer as to why he did not return to work. To avoid such claims in the future, it is important that businesses continue to follow government guidance, regularly assess health and safety and make reasonable adjustments for those who have concerns about physically returning to the workplaces.

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