Covid-19 and employees’ refusal to return to the workplace until deemed safe

8th February 2023

As we approach the three-year anniversary of the first lockdown in March 2020, it is often heard that we have learnt to live with Covid-19.

That is not, however, to suggest that the cases and consequences of the virus are so low that they can be ignored.

Government statistics

To take recent snapshots in England*:

  • In the 7 days up to and including 28 January 2023, there were 15,135 new reported cases.
  • In the 7 days up to and including 30 January 2023, 4,621 people were admitted to hospital due to the virus.
  • In the 7 days up to and including 6 January 2023, there were 716 deaths with COVID-19 on the death certificate.

*Source: updated as at 2 February 2023, 4.00pm.

Whilst compulsory nationwide protective measures have been dispensed with, the risk of catching the virus and the consequences of doing so remain real and of concern.

Refusal to come to the workplace

During 2020 and 2021, it was not unusual to come across situations where employees were reluctant, and some indeed refused, to return to the workplace, for fear of catching the virus and passing it on to their families.

There were cases where employees who refused to return to work at their workplace, citing this fear, were dismissed.

Were the employers permitted, lawfully, to fire these employees? Or were the employees, lawfully, permitted to refuse to attend their workplace due to their fears?

Section 100(1)(d) Employment Rights Act 1996

Employees do have protection against being unfairly dismissed in circumstances where there is a danger to them returning to their workplace.

This protection is given to employees under section 100(1)(d) of the Employment Rights Act 1996 (ERA).

It states that an employee will be automatically unfairly dismissed if the principal reason for the dismissal is that, 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 (whilst the danger persisted) refused to return to their place of work.

Where the statistics for Covid-19 cases, hospitalisation and death are significant, could an employee simply refuse to attend work due to a fear of catching the virus?

Rodgers -v- Leeds Laser Cutting Limited [2022] EWCA Civ 1659

In this recent Court of Appeal case, Mr Rodgers worked as a laser operator for Leeds Laser Cutting Limited (LLCL).

After the first lockdown in March 2020 was imposed, LLCL announced to its employees that the business would remain open. However:

  • LLCL confirmed it was putting in place measures to allow employees to work as normal;
  • There were already measures in place to protect against the virus;
  • The need to socially distance was already common knowledge;
  • A risk assessment was carried out by an external professional in mid-March 2020. That assessment recommended (most of which were already in place):
    • Social distancing.
    • Sanitising surfaces.
    • Staggering start, finish, lunch and break times.
  • Mr Rodgers’ workplace was a large warehouse, at which there were only usually five employees present at any one time.

Mr Rodgers told LLCL that he was not coming into work “until the lockdown has eased” because he had a child with sickle cell disease as well as a seven-month-old baby who may have underlying health conditions (though Mr Rodgers was not at that time aware of any such conditions).

After making this clear to LLCL, Mr Rodgers drove a friend to hospital as well as worked in a pub.

Mr Rodgers was dismissed by LLCL, and brought a claim for unfair dismissal, including a claim for automatic unfair dismissal under section 100(1)(d) ERA.

Court of Appeal

The case eventually ended up in the Court of Appeal, which set out the questions to be decided in a case brought under section 100(1)(d). These are:

  1. Did the employee believe that there were circumstances of serious and imminent danger at the workplace?
  2. If so, was that belief reasonable?
  3. If so, could the employee reasonably have averted that danger?
  4. If not, did the employee leave, or propose to leave, or refuse to return to the workplace, or the relevant part, because of the (perceived) serious and imminent danger?
  5. If so, was that the reason (or principal reason) for the dismissal?

Here, it was found that Mr Rodgers had concerns about Covid-19 “at large”, and not specifically concerns about Covid-19 in his workplace. For a claim to be able to succeed under section 100(1)(d) ERA, the concern must be about specific dangers in the workplace.

Further, the original tribunal concluded that Mr Rodgers did not hold a reasonable belief in a serious and imminent danger, pointing to the availability of masks (Mr Rodgers had not asked for one), the workplace being a large warehouse with only 5 people in it, that he could have socially distanced, he had driven his friend to hospital and had worked in a pub.

Current position

Some employees, particularly those who are ill or have vulnerable family members, will be reluctant to attend the workplace either on a full or hybrid basis.

So, what should an employer do before it decides to discipline the employee for failing to attend the workplace despite having been instructed to do so?

  • Consider the five questions posed by the Court of Appeal.
  • Identify whether the employee is concerned about the dangers posed by Covid-19generally (i.e., ‘at large’) or whether their concern relates specifically to the workplace. For a section 100(1)(d) ERA claim to be made successfully, the employee must reasonably believe the serious and imminent dangers complained of are present at their workplace.
  • Ensure within the workplace it has done all it reasonably can to deal with the risk posed by Covid-19 in the context of current government guidelines, and in particular in respect of the dangers raised by the employee. This will help the employer decide whether the Court of Appeal’s questions one and two above have been satisfied.
  • Identify anything which the employee can reasonably do to remove or reduce to a reasonable level the concerns identified by the employee.

Although we are learning to live with Covid-19, the statistics remain significant. We are not yet in the position where we can all happily ignore the virus.

This means that employers will still be faced with the situations described above for some time. When that situation arises, the employee should follow the five questions posed by the Court of Appeal.

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