Employee Refuses to Work in the Pandemic
In a recent case the EAT upheld an employment tribunal decision that an employee who refused to return to the workplace during the coronavirus pandemic was not automatically unfairly dismissed.
Rodgers (R) was employed by Leeds Laser Cutting Ltd (LLC). At the beginning of the coronavirus pandemic, his workplace carried out a risk assessment which recommended social distancing, the sanitisation of surfaces, and the staggering of start, finish and break times – most of these recommendations were already in place.
In March 2020 R emailed his manager, stating that he had no alternative but to stay off work until the pandemic eased, on the basis that he had a child with sickle cell disease and a baby who may have underlying health issues.
One month later, LLC sent R a P45. R brought an automatic unfair dismissal claim under s.100(1)(d) Employment Rights Act 1996, which states that an employee is automatically unfairly dismissed if the reason for dismissal is that:
“In circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left… or… refused to return to his place of work or any dangerous part of his place of work”
The tribunal held that R’s case did not fall within the scope of s.100(1)(d). R’s concerns about coronavirus were general, not directly attributable to his workplace. R appealed to the EAT.
The EAT agreed that there were “circumstances of danger” due to the pandemic. As to whether R “reasonably believed” that this danger was “serious and imminent” the question was whether R’s workplace presented a greater risk than was present generally. The EAT held that R did not reasonably believe that there were serious and imminent circumstances of danger, whether at work or at large, that prevented him from returning to work. The EAT acknowledged that it would be possible for an employee to fall within s.100(1)(d) if he reasonably believed that there was serious and imminent danger outside his workplace preventing him from returning to it. But the EAT’s view was that R’s concerns regarding coronavirus did not mean that he believed that there was serious and imminent danger preventing him from returning to work. The reasons for this finding included that R had not asked for a mask when these were made available and had worked in a pub during lockdown. Other similar factors were also considered.
The decision is particularly relevant to the coronavirus pandemic but has wider implications. It indicates that it is possible for employees to bring an automatic unfair dismissal claim under s.100(1)(d) if they resign or are terminated because they refuse to come to work – but it very much depends on their personal circumstances. In this case how they behaved generally, how risky their commute and workplace are, were all taken into consideration. The tribunal also consider whether there were steps they could have taken to avert the perceived danger. This is clearly a high bar for a claimant to reach.
We are aware that employers do still have some staff who are refusing to return to the workplace – we recommend they obtain legal advice as to whether s.100(1)(d) may apply and, if not, what steps can be taken to resolve the situation.