Absent employee who feared Covid-19 was not automatically unfairly dismissed

By Brabners LLP

28 Apr 2021

pexels-ivan-samkov-4492119.jpg

If an employee is dismissed for refusing to come into work because they are concerned about catching and passing Covid-19 to their children, will their dismissal be automatically unfair?

Not in the case of Rodgers v Leeds Laser Cutting Ltd. However, employers should bear in mind that cases such as this are very fact-specific and should not be relied on as setting any definitive legal position.  

Background

Mr Rodgers worked for Leeds Laser Cutting Ltd (“LLCL”) as a laser operator in their warehouse. He had not worked for LLCL for at least two years by the time of his dismissal, so he did not have the right to bring an ordinary unfair dismissal claim.

However, under sections 100(1)(d) and (e) of the Employment Rights Act 1996, employees have protection from dismissal in circumstances where they leave the workplace or take steps to protect themselves because they reasonably believe there is a serious and imminent danger which the employee can’t reasonably be expected to avert. If employees are dismissed in such circumstances then they can bring an “automatic” unfair dismissal claim, which does not require any particular length of service.

On 29 March 2020, just after the start of the first lockdown, Mr Rodgers messaged his manager to say that he would not be coming back into work "until the lockdown has eased" because he was worried about catching and passing Covid-19 to his children, one of whom was a baby and the other suffered from sickle-cell anaemia. There was no further contact between Mr Rodgers and his employer until 24 April 2020 when he was dismissed.

In order to decide whether his dismissal was automatically unfair, the Tribunal needed to decide whether Mr Rodgers had a reasonable belief that going to work would present a serious and imminent danger which Mr Rodgers could not avoid.

LLCL’s warehouse was large (around the size of half a football pitch) and there were usually only five employees working in the warehouse at any one time. LLCL had engaged an external professional to conduct a risk assessment, they had implemented social distancing measures and wiping down of surfaces, and they had advised staff not to congregate at lunch and break times.

In fact, Mr Rodgers admitted that social distancing in the warehouse was “not hard, you could do it”. Mr Rodgers had never asked his employer for a mask. Mr Rodgers also conceded that the measures which LLCL had put in place would possibly make the workplace safer than the community at large, but not safer than his own house, hence why he had taken the decision to remain at home. Yet, despite Mr Rodgers' apparent concerns about Covid-19, the Tribunal found that he had breached self-isolation guidance by driving a friend to hospital on 30 March 2020, the day after he had left work.

In the circumstances, the Tribunal found that Mr Rodgers had not raised any concerns or complaints with his employer regarding the adequacy of the Covid-19 measures which LLCL had put in place. In fact, his text to his employer on 29 March 2020 did not make any mention of Mr Rodgers having a particular fear about his health and safety at work. On the contrary, it appeared that Mr Rodgers’ decision to stay off work was not directly linked to his working conditions; rather, his concerns about the virus were general ones which were not directly attributable to the workplace.

The Tribunal concluded that LLCL’s dismissal of Mr Rodgers was not automatically unfair.

Key points to note

The Employment Tribunal made an important point in this case that an employee cannot simply ‘down tools’ on the basis that the Covid-19 virus exists. An individual can only rely on the protection of sections 100(1)(d) and (e) of the Employment Rights Act 1996 where there is some link between the perceived “danger” and their working conditions. In this case Mr Rodgers had not raised any concerns about the measures in place at the warehouse where he worked and had, in fact, suggested that he may be safer at work than elsewhere. Conceivably an employee could bring a claim relating to a perceived danger in commuting to and from work, but that wasn’t raised as an issue in this case.  

The Tribunal did, however, find that LLCL had made no effort to contact Mr Rodgers to clarify his position or to discuss any alternative options, including furlough or sick pay. In fact, LLCL made a conscious decision not to make contact with Mr Rodgers, considering the onus to be on him to make contact with them. Such an approach is highly unusual and the Tribunal alluded to the fact that the outcome of the case might have been very different if the Claimant had the length of service to bring an “ordinary” unfair dismissal claim. Employers should therefore remember that it is important to engage with any concerns raised by employees about their health and safety, and it would only be in very exceptional cases that an employer would dismiss an employee without any warning or prior discussion.

Many employers have been grappling with how to deal with concerns raised by employees about their health and safety in the current circumstances, particularly employees who are unwilling or reluctant to return to work. It is important to listen to their concerns but also to ask them to be specific about what they are worried about in the workplace, bearing in mind the various Covid-secure measures which the employer has already put in place. It is not appropriate for an employee simply to refer to a general fear of Covid-19 as a reason for not attending work; their specific workplace-related concerns need to be explored and addressed where possible.

Are you an employer facing similar issues? Please contact your usual Brabners employment lawyer or Hannah Morrison to discuss further. 

Latest news

1

Pleasure Beach Resort takes home four prizes at UK Theme Park Awards Pleasure Beach Resort’s David Hill, head of rides, and Stuart Cumming, marketing manager with the awards

Pleasure Beach Resort takes home four prizes at UK Theme Park Awards

18 Sep 2025

2

Brookhouse Aerospace invests more than £500k in additional machinery to support growth Brookhouse Aerospace machining facility

Brookhouse Aerospace invests more than £500k in additional machinery to support growth

18 Sep 2025

3

Growth Plan maps out £20bn-plus investment journey Mo Isap from the Lancashire Business Board with the plan

Growth Plan maps out £20bn-plus investment journey

18 Sep 2025

4

Post Office future secured as council explores new options Abington Street Post Office

Post Office future secured as council explores new options

17 Sep 2025

5

Airframe Designs supports new defence strategy with pledge to nurture talent Jerrod Hartley

Airframe Designs supports new defence strategy with pledge to nurture talent

17 Sep 2025

Background image for hub sign up block

LBV Hub

Leverage Lancashire Business View platforms

Post your news
Post your events
Post your offers
Build your network
Improve your SEO
Gain coverage in the magazine
Sign-up
Events
CMI Level 5 Project Management Course
UCLanAerialCampus.jpg.jpg
LBV Hub Seminars
21 Feb 2025 - 21 Feb 2026

CMI Level 5 Project Management Course

Preston Campus, Preston, PR1 2HE

08:00 - 17:00

CMI Level 5 Management and Leadership Course
UCLanAerialCampus.jpg.jpg
LBV Hub Seminars
21 Feb 2025 - 21 Feb 2026

CMI Level 5 Management and Leadership Course

Preston Campus, Preston , PR1 2HE

09:00 - 17:00

Cumbria Business Expo 2025
https---cdn.evbuc.com-images-880461633-4862066883-1-original.20241022-110415.jpeg.jpg
LBV Hub Exhibitions
19 Sep 2025 - 19 Sep 2025

Cumbria Business Expo 2025

Carlisle Racecourse, Carlisle, CA2 4TS

09:00 - 15:00

Your Business, Your Region: Making sense of devolution and Local Government Reorganisation
Chorley Council breakfast event new
LBV Hub Networking
23 Sep 2025 - 23 Sep 2025

Your Business, Your Region: Making sense of devolution and Local Government Reorganisation

Worden Hall, Leyland, PR25 3DH

08:00 - 11:00

Preston Freelancer Meet-Up: September
Sept Freelancer (1).png.png
LBV Hub Networking
23 Sep 2025 - 23 Sep 2025

Preston Freelancer Meet-Up: September

Society1, Coworking Space, Preston, PR1 3LT

10:00 - 11:30

Speed Networking with BNI
2.png.png
LBV Hub Networking
24 Sep 2025 - 24 Sep 2025

Speed Networking with BNI

Chorley Football Club, Chorley, PR7 3DU

16:00 - 19:00

The Marketing Meetup IRL: Lancashire - September
TMM Lancashire
LBV Hub Networking
25 Sep 2025 - 25 Sep 2025

The Marketing Meetup IRL: Lancashire - September

Chorley, PR7 2SL

18:00 - 20:00

Making Tax Digital for Income Tax Self Assessment (MTD for ITSA) drop-in day
MTD drop in session.jpg.jpg
LBV Hub Seminars
25 Sep 2025 - 25 Sep 2025

Making Tax Digital for Income Tax Self Assessment (MTD for ITSA) drop-in day

Making Tax Digital for Income Tax Self Assessment (MTD for ITSA) drop-in day, Blackburn, BB1 5QB

10:00 - 16:00

The Marketing Metrics That Matter – Sept 25
Metris 25.09.png.png
LBV Hub Seminars
25 Sep 2025 - 25 Sep 2025

The Marketing Metrics That Matter – Sept 25

Door4 Office, Burnley Wharf, Burnley, BB11 1JG

09:00 - 11:00

Help to grow management course
Help to grow - barriers to growth.png.png
LBV Hub Seminars
26 Sep 2025 - 16 Dec 2025

Help to grow management course

Preston Campus , Preston , PR1 2HE

09:00 - 15:00

The Future of Work: Tech, teams and thriving in a changing world
Oct PTC.png.png
LBV Hub Networking
07 Oct 2025 - 07 Oct 2025

The Future of Work: Tech, teams and thriving in a changing world

Society1, Coworking Space, Preston, PR1 3LT

18:00 - 19:30

Chamber Breakfast Networking – October
Lancs-cham-logo.jpg.jpg
LBV Hub Networking
07 Oct 2025 - 07 Oct 2025

Chamber Breakfast Networking – October

Soul Bowl, Morecambe, LA4 4BU

08:00 - 10:00

Advertise with us

Reaching 50,000 members, our print, digital and event platforms offer a fantastic way to raise your business profile and help you grow.

Find out more LBV124 Online Graphic
Subscribe now

Weekly news bulletin