Just prior to Christmas, the first COVID-19 related case reached the Court of Appeal. The court heard that an employee who failed to attend work during COVID-19 because they believed that they would be faced with serious and imminent danger had not been unlawfully dismissed.
The Tribunal Case
Rogers v Leeds Laser Cutting is the first COVID-19 tribunal case to reach the Court of Appeal. In this case, Mr Rodgers had been dismissed having walked out of his job because he was worried about infecting his clinically vulnerable children. He was dismissed for not attending work and claimed that he had been automatically unfairly dismissed for exercising his right to leave the workplace when he reasonably believed that here was a serious and imminent danger.
Even though he did not have the 2 years’ qualifying service to bring a claim for ordinary unfair dismissal, he was able to bring a claim under Section 44 of the Employment Rights Act 1996.
It is this section that prohibits employees from suffering a detriment in circumstances of danger in which the worker reasonably believed to be serious and imminent, that they took (or proposed to take) appropriate steps to protect themselves or other persons from the danger.
The original employment tribunal found Mr Rodgers had been fairly dismissed, even though they had accepted his concerns.
They had however not been satisfied with his vagueness about why he felt the workplace was unsafe, given the employer had taken all reasonable steps to mitigate against the risk of COVID-19.
He had also agreed that the risks were no different to those outside the workplace.
The Court of Appeal’s verdict
In considering the case, and the reasoning for the Employment Tribunal’s ruling, The Court of Appeal have delivered its ruling and upheld the original decision. The Court of Appeal held that Mr Rodgers concerns were general and not workplace specific.