Is it automatically unfair to dismiss an employee for refusing to attend work due to concerns surrounding Covid-19?

Claire Moore
Human Resources

A tribunal has recently concluded upon a case in which an employee was dismissed for his refusal to attend the workplace until ‘lockdown had eased’. The claimant had a 7 month old baby and a child with sickle cell disease so deemed removing himself from the workplace an appropriate measure to protect himself and his family from Covid-19.

In this case (Rogers vs Leeds Laser Cutting) the employee did not have the required 2 years’ service to bring a claim for unfair dismissal, however, was able to peruse a claim under the automatic unfair dismissal rights on the basis of health and safety.

Legislation deems dismissal in instances where there are legitimate concerns surrounding health and safety in the workplace to be automatically unfair. This means that an employee could look to bring a claim in situations where they are dismissed as a result of leaving or refusing to attend work when they reasonably believe there is serious and imminent danger, regardless of their length of service.

Leeds Laser Cutting had ensured that Covid secure measures were quickly implemented throughout the workplace. These measures included staggering arrival times, social distancing, wiping down surfaces, and putting up reminders on handwashing. Employees were informed that the workplace would remain open and were provided detail of the measures that had been put in place. The claimant did not express specific concerns to their employer.

The Tribunal dismissed the claim finding that due to the measures put in place the level of danger in the workplace was not greater than that in general society, therefore the claimant’s absence was not due to any specific risk posed by the working conditions. The fact that the claimant also failed to raise any specific concerns to their employer contributed to the case being dismissed.

It must be noted that this is a first instance decision and is not binding on other tribunals. It does, however, highlight the importance of ensuring appropriate Covid-19 secure measures are implemented in the workplace and that these are communicated to employees. We would always advise consulting with staff regarding their reasons for refusing to attend the workplace and looking to address any concerns they may have. Acting reasonably is essential when there is limited case law to determine what decisions are fair decisions.

Please contact our HR Consultancy team should you require any support

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