As the current lockdown continues to ease we are starting to see more pandemic related tribunal claims filter through to full hearings.  Last month, there was the unfair dismissal claim brought after an employee was dismissed for refusing to wear a face mask at a client's premises, a claim that was successfully defended by the employer.  This month the statutory protection from detriment and dismissal for employees who leave their workplace and/or refuse to return because of a reasonable belief that the workplace poses a serious or imminent threat to them or others was in the spotlight.  Unlike standard unfair dismissal claims, there is no minimum service requirement for bringing this type of "automatically unfair" dismissal claim.

In Rodgers v Leeds Laser Cutting Limited, the employee's concerns centred on the risk of infecting his vulnerable children should he contract Covid-19 at work.  Mr Rodgers worked as a laser operator in premises that were roughly half the size of a football pitch, described by the Employment Judge as "a large warehouse-type space".  There were typically five people working in this area.  In March 2020 a colleague exhibited signs of Covid-19 and was sent home to self-isolate.  The employer had carried out a risk assessment and the business was already operating a number of Covid secure working practices including social distancing, wiping down surfaces, use of masks and hand-washing.  There were discussions with staff about these measures. 

Mr Rodgers developed a cough on 25 March 2020 but attributed it to the temperature and dust in the workplace.  He worked until Friday 27 March.  Over the weekend he messaged his employer asserting he could not return to work until lockdown had eased as he had vulnerable children.  He obtained a self-isolation note from NHS 111 that covered him until 3 April 2020. He did not return to work and his next communication with his workplace was on 24 April when he found out he had been dismissed.  He brought a claim for automatically unfair dismissal.

The Employment Judge hearing the claim decided the statutory protection on the grounds of serious and imminent danger did not apply.  The Employment Judge was unimpressed with Mr Rodgers evidence, finding it vague and contradictory at times.  Although Mr Rodgers was genuinely concerned about the pandemic and the risk to his family, the Employment Judge did not accept he had a reasonable belief that there were circumstances of serious and imminent danger in the workplace.  Mr Rodgers had failed to communicate any concerns regarding safety to his employer and his employer could not have known that was why he was absenting himself from work. 

Although this claim was unsuccessful it turned on its own facts and the claimant's lack of credibility as a witness had not helped him.  The case does not set any precedent regarding the effectiveness of these provisions to claims arising from the pandemic.  It does serve as a useful reminder that the provisions refer to a threat not only to the particular employee but also others including family members - something all the more relevant with a virus that is transmitted easily within the home.  The judgment also highlights the need not only for an employee to have a belief that they are in serious and imminent danger, but that such a belief must reasonable.  The steps employers have taken to keep their staff safe and how they have communicated those steps to staff will be relevant to that issue, as will an employer's response to any concerns raised by employees or their representatives. 

While the continuing vaccination programme may address the fears of many employees, the easing of lockdown and the anticipated return of many staff to workplaces provides the potential for many more claims of this type.  The extension of this protection to workers with effect from 31 May 2021 will increase those numbers further and it is likely only a matter of time before we see a successful claim being made.