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COVID – 19 and unfair dismissal

What is the case about?

Another case ruling has been published relating to the COVID-19 pandemic. This time, it is an employment appeal tribunal ruling which considered whether an employee’s refusal to attend the workplace because of COVID-19 concerns was fair or not.

The original employment tribunal ruled in April 2021 found in favour of a fair dismissal, which you can read details of the judgement in our newsletter published at the time, which you can access here.

The circumstances

In April 2021 Mr. Rodgers lost his claim for automatic unfair dismissal. He argued that his dismissal for refusing to attend work due to COVID-19 concerns was an automatic unfair dismissal under section 100 of the Employment Rights Act. Section 100 deals with providing employees with protection against dismissal in circumstances where they reasonably believe there is serious and imminent danger to their health and safety.

He had refused to return to work until lockdown eased because one of his colleagues was forced to self-isolate. Mr Rodgers had a child suffering with sickle cell disease, and so he believed that refusing to return to work was an appropriate step to protect him and his family, and therefore in line with his rights under section 100 of the Employment Rights Act.

Following the ruling that his dismissal was in fact fair, Mr. Rodgers appealed to the EAT as he believed that the original Employment Tribunal erred in law.

During the EAT, the tribunal found several findings of fact, including how Leeds Laser Company Ltd had taken extensive steps to mitigate risk from the virus in the workplace. They further found that Mr. Rodger’s view that there were serious and imminent circumstance of danger to not be reasonable, given that the risks in the workplace were no greater than those outside of work.

The judgement

The EAT ruled that the original employment tribunal ruling was sound and reiterated that the dismissal was a fair dismissal. Furthermore, the EAT warned that the Coronavirus could in principle lead to circumstances whereby an employee/worker could reasonably believe the dangers to be serious and imminent.

Learning points

Even though in this case, the EAT found the circumstances to not breach section 100 of the Employment Rights Act 1996, it is interesting that the EAT specifically made mention that Coronavirus can still lead to circumstances where an employee/worker can reasonably believe the dangers to be serious and imminent.

With businesses back open, measures no longer being a legal requirement and we continue to live with Coronavirus, it is a warning for employers to be mindful of this legal entitlement that exists under the Employment Rights Act.

Further Information

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