18 June, 2021
Mr Rodgers brought a claim against his ex-employer for automatically unfair dismissal having been dismissed after refusing to attend the workplace over Covid concerns.
The claimant did not have two years' continuous service at the relevant time so relied on section 100 of the Employment Rights Act 1996, which provides protection from dismissal where an employee takes step to protect themselves (including leaving a workplace) where they reasonably believe to be in serious and imminent danger.
Following the announcement of the first lockdown on 23 March 2020, the employer confirmed to employees that they would remain open and measures, based on an external risk assessment, were being put in place to allow them to continue working safely. Examples of risk mitigation included social distancing (in a large warehouse), staggered shift patterns and lunch breaks, making masks available, and enhanced cleaning and sanitising.
The claimant had a slight cough from 25 March 2020 but blamed that on the temperature and dust. He left work as normal on Friday 27 March 2020 however sent a text to his employer on 29 March 2020 stating that due to his children being high risk, he would be staying off work until lockdown eased.
The claimant obtained a self-isolation note for the period 28 March 2020 to 3 April 2020 and there was no further correspondence from either the employee or employer in respect of furlough, sick pay, or clarification on the position until 24 April 2020, when the claimant sent another text to say he had been informed he had been 'sacked' and requested further written information.
At tribunal, the judge found the claimant's case confusing, as he confirmed that all the measures put in place by his employer would make the workplace as safe as possible. He also breached self-isolation guidelines, by driving his friend and working in a pub. Further, he never mentioned his safety concerns to his employer.
The judge concluded that the claimant's decision to stay off work was not directly attributable to his working environment, and his Covid related concerns were general in nature only. Ultimately, the judge held that they did not consider that any belief that circumstances were indicative of serious and imminent danger were objectively reasonable and as such, the claim for unfair dismissal was dismissed.
Whilst not a binding decision, it is interesting to see Covid and the perception of reasonableness for ensuring workplaces are safe being considered by employment tribunal judges.
Despite the claim being dismissed in this instance, it highlights the importance of employers having appropriate measures in place to not only reduce the risk of employees contracting Covid, but also to prevent employees claiming their workplace is dangerous more generally with regard to health and safety.
This is exacerbated as in the legislation, the 'serious and imminent danger' is not specified as a personal danger and therefore all staff members, not only those who have any element of clinical vulnerability, are likely to be able to show there is a danger and consequently may seek to rely upon this protection. Additionally, with the nature of Covid, any danger is likely to be 'serious and imminent' and therefore the only question is whether the employees' belief in that danger was reasonable. Whether that belief is reasonable or not will depend on the individual circumstances of the school and the employee, including safety measures or risk assessments.
Before schools reopened after the Christmas break, the NEU advised all its' members that it would be unsafe for them to attend and in accordance with the then Government guidance, people should work from home if they can. This correspondence, however, did not account for the differing levels of risk of Covid throughout the country and was seen as a sweeping statement, failing to consider the potential 'imminent and serious danger' different staff members may be subjected to, depending on the actions of their school and its' location.
Nevertheless, many members submitted 'section 44' letters to their employers, based on section 44 of the Employment Rights Act 1996 which provides a protection from detriment where an employee leaves or refuses to return to his workplace where he reasonably believes there to be a serious and imminent danger which he could not reasonably have been expected to avert.
In such circumstances, if employees' elect to take steps to protect themselves, such as not attending work, schools would be advised to write to them, informing them of everything which has been done from a risk management perspective. If there remain concerns by employees, potential action may be considered, depending on the reasonableness of the concern, such as disciplinary action for being away from the workplace or refusing a reasonable management instruction.
Failure to pay employees who do not attend work could arguably be a detriment and so schools should exercise caution with withholding pay. That being said, if it can be shown that any belief of the employee was not reasonable, then schools may not need to pay them for any days off work subsequent to the first day.
The key takeaway is to ensure that any belief by an employee in the imminent danger of attending work is unreasonable before taking any action, and to consider any request to work from home. If you would like any support with how to best deal with employees' who do not feel able to attend their workplace, please get in touch.