Dismissal for COVID-related absence automatically unfair?

The Employment Tribunal (“ET”) in the case of Rogers v Leeds Laser Cutting Ltd, has considered whether an employee was automatically unfairly dismissed where he refused to attend work because he believed that the COVID-19 risk at work presented a serious and imminent danger to him and, by extension, his vulnerable family members.

Background

The Claimant started working for Leeds Laser Cutting Ltd (“the Respondent”) as a laser operator in June 2019. Following the announcement of the UK’s first national lockdown on 23^rd March 2020, the Respondent put in place measures to facilitate the continued operation of its business, including social distancing, wiping down surfaces and staggering start/finish times for employees. On 29^th March 2020, the Claimant informed the Respondent that he would not return to work until the lockdown had eased because he had a child with a chronic condition who would be vulnerable to COVID-19 infection. There was no further contact between the parties until 24^th April 2020, when the Claimant was informed that he had been dismissed. The Claimant subsequently brought a claim to the ET for automatically unfair dismissal.

The Law

Under Section 44 of the Employment Law Rights Act 1996, an employee has the right not to be subjected to any detriment by their employer where they bring to their employer’s attention circumstances connected with their work which they reasonably believed were harmful or potentially harmful to health or safety. If an employee were to raise a health and safety complaint of this type and was dismissed as a result, their dismissal would be automatically unfair, and the employee would not need 2 years’ service to bring such a claim. In this particular case, the Claimant had only been employed for around 10 months and, therefore, did not have the requisite service to bring a ‘normal’ unfair dismissal claim.

Decision

The ET dismissed the claim for automatically unfair dismissal. Although the Tribunal accepted that the Claimant had concerns about COVID-19 infection, it concluded that the Claimant’s decision to stay off work was not directly linked to his working conditions. In making this finding, it considered that the Claimant’s evidence had been contradictory, for example, he claimed he had not felt safe to attend work but he had then driven a colleague to hospital whilst having been advised to self-isolate by the NHS. Furthermore, the Claimant had not raised any concerns about the Respondent’s working practices at the time of his refusal to attend work and he also accepted that the Respondent had put certain health and safety measures in place, e.g. social distancing and frequent handwashing.

Comment

Although this may be a welcome decision for employers and it is useful to see how a tribunal might approach a case of this type, it is only at the Employment Tribunal level and, therefore, not binding on other courts or tribunals and it is one dependent on the particular facts of the case. The Judge recognised that the Claimant did have concerns about the COVID-19 pandemic and that he could have reasonably taken steps to protect his vulnerable family members from a risk of infection. Therefore, had the Claimant made further efforts to substantiate his concerns and highlight any flaws with the Respondent’s risk assessment or health and safety practices, then the decision could have been very different. In particular, the ET made the following comment about the Respondent’s lack of process: “Whilst there are many comments the Tribunal could make about what then followed, the way in which the Respondent conducted itself and the manner of the dismissal, they are not relevant in this case, due to the Claimant not having sufficient qualifying service to bring a claim of ‘ordinary’ unfair dismissal.”

Employers should treat situations of this type very carefully and should seek specialist advice, given the additional protections which arise where an employee is raising health and safety concerns, particularly where they relate to the COVID-19 pandemic.

Case reference: Mr D Rodgers v Leeds Laser Cutting Ltd: 1803829/2020