Staff refusing to return to work because of Covid-19 fears?

If an employee or worker is dismissed because they leave or refuse to return to a workplace that they reasonably believe is dangerous they may have a claim for automatically unfairly dismissal. That means they do not need the usual two years’ service to submit a claim to the employment tribunal.

The protection is found in section 100 of the Employment Rights Act which covers health and safety cases. Section 100(1)(d) protects employees who are dismissed because, ‘in circumstances of danger, which the employee reasonably believed to be serious and imminent and which the employee could not reasonably have been expected to avert, the employee left (or proposed to leave) or (while the danger persisted) refused to return to their workplace or the dangerous part of the workplace’.

It seems unlikely that this legislation was drafted with a global pandemic in mind. Before the Covid-19 pandemic working in an office or retail environment was rarely considered to pose a serious and imminent risk to health.

A small number of S100 H&S dismissal cases based on the fear of catching Covid-19 at work have now been heard. The two cases summarised here are both employment tribunal cases of first instance. That means they are not binding on future tribunals.

We might also argue that circumstances have changed since those claims were submitted. Most workplaces arguably no longer pose the same health and safety risks they did before so many people in the UK were double jabbed. Nevertheless, these cases provide guidance to employers.

The Claimant in Rodgers v Leeds Laser Cutting refused to return to work after lockdown because he said he feared he would infect his children. He was subsequently dismissed. The  tribunal found that his dismissal was not  automatically unfair because he failed to establish a reasonable belief in serious and imminent workplace danger.

The tribunal was influenced by his actions, which included breaching self-isolation guidance the day after leaving work, and the employer’s actions in implementing government-recommended precautions such as hand-washing and social-distancing.

In Gibson v Lothian Leisure the tribunal found that Mr Gibson, who had  a clinically vulnerable father, had been automatically unfairly dismissed. When he raised concerns about the lack of PPE and other government recommended safety measures he was told to ‘shut up and get on with it’. Then he was summarily dismissed by text message.

Key take away for employers

As we move into winter, combined with possibility that some vaccine protections may start to wane, employers may be faced with staff resisting the call to come back to the workplace. To minimise the risk of S100 claims we suggest the following:

• Continue to implement Covid safety measures in accordance with government guidance.
• Communicate the precautions you had taken to staff.
• Take the employee’s concerns seriously and carefully consider any representations they make.
• Before moving to dismiss employees who refuse to return to the workplace, assess the reasonableness of their conduct. Are their concerns valid and did they discuss their concerns with management before refusing to return to, or absenting themselves from the workplace?

If you need employment legal advice relating to these matters contact our employment lawyers.