UK: COVID-19 – Staying Away from Work
Under UK employment legislation, an employee is protected from dismissal where there are legitimate health and safety concerns. An employee may be entitled to claim automatic unfair dismissal where they have left work, refused to return to work and/or taken appropriate steps to protect themselves and/or others from a situation which they reasonably believed to pose a serious and imminent danger, and one which could not be avoided.
The Claimant, Mr Rodgers, worked as a laser operator in a workplace roughly the size of a large warehouse. In March 2020, his employer implemented measures to combat the spread of Covid-19. These included adhering to social distancing, wiping down surfaces, staggering arrival times and putting up reminders on handwashing. After Mr Rodger’s colleague displayed symptoms and began self-isolating, Mr Rodgers decided not to return to work “until the lockdown eased”. The reason for this was his concern for his children; a 7-month-old baby and another diagnosed with sickle cell disease.
The EAT found that tribunal had been entitled to find, on the evidence, that Mr Rodgers (who had not raised any specific workplace concerns with the employer) did not have a reasonable belief that there was a serious and imminent danger that prevented him returning to work. It had also been entitled to find that there were steps he could reasonably have taken to avert any danger.
Key Action Points for Human Resources and In-house Counsel
Although employers will welcome this decision, the case confirms that health and safety reasons relating to Covid-19 could be relevant to giving employees protection from dismissal, but that every case will need to be considered on its facts and merits. Where the employer has followed government public health guidance it will be more difficult for the employee to take advantage of the protection offered by the law, particularly if they did not raise any specific workplace concerns at the time.