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Covid-19 and unfair dismissal

View profile for Julie Temple
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Covid-19 and unfair dismissal

It has taken some time for Covid-19 related tribunal cases to be heard and determined.

The Employment Appeal Tribunal ( EAT ) has recently upheld a tribunal decision that an employee was not automatically unfairly dismissed when he refused to attend work over his concerns about the risk of Covid-19 to his vulnerable children. Case name Rodgers v Leeds Laser Cutting Ltd May 2022.

The employee refused to attend work during lockdown because he claimed his vulnerable children could become very ill if they caught Covid-19. He was dismissed and claimed that he had been automatically, unfairly dismissed because he had exercised his right not to return to the workplace to protect himself from circumstances of danger, which he had reasonably believed were serious and imminent and which he could not reasonably have been expected to avoid.

The tribunal dismissed the claim because it held, whilst he had general concerns about Covid-19, these were not directly attributable to his workplace. The tribunal also found that he regularly did not wear a mask, that he left home when he should have been self-isolating and had worked in a pub during lockdown and these facts did not support his argument that there were circumstances of danger which he believed were serious and imminent.

He appealed and the EAT accepted that an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented him from returning to the workplace. 

However, it held that the tribunal had found that he did not reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large. It said that, even if the tribunal had been wrong about this, it had been entitled to find that he could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands. 

This case shows that whilst an employee might claim he believed there were serious and imminent risks, a tribunal may not accept that the employee was genuine.

If you or your organisation need advice on Covid-19 and automatic, unfair dismissal, please get in touch with the team here

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