(RODGERS V LEEDS LASER CUTTING LTD EMPLOYMENT TRIBUNAL DECISION MARCH 2021)

Following the first national lockdown in March 2020, a laser cutting business notified its employees that it would be staying open. It had put measures in place to enable staff to continue working, including social distancing, wiping down surfaces, staggering start times and provided face masks. The work space was large and generally occupied by a few workers.

At the end of March 2020, the Production Manager received a text from an employee with 11 months service (June 2019) . The employee stated that because their child had sickle cell disease (now potentially regarded as a clinically extremely vulnerable) they had no choice but to stay off work until the lockdown eased. Subsequently the employer dismissed the employee. The employee submitted a claim to the Employment Tribunal for automatic unfair dismissal.

The legal definition:

Under Section 100 of the Employment Rights Act 1996, which provides a dismissal will be automatically unfair if the sole or principal reason for dismissal is that, in circumstances of danger which the employee reasonably believed to be serious or imminent where:

An employee leaves or refuses to return to their place of work (or proposed to do so), it not being reasonable to expect them to avert the danger

And/or

They took (or proposed to take) appropriate steps to protect themselves or others from the danger.

The Tribunal dismissed the claim. The employer pointed to its risk assessment which had led to it taking steps to implement social distance measures (including regular reminders), provision for handwashing and other suitable facilities.

The employee’s text, advised his decision would be to stay away from work until the lockdown eased (as opposed to if/when improvements were made to the workplace).

Although the Tribunal acknowledged that the employee had a genuine belief of circumstances of serious and imminent danger, it would not have been reasonable taking account of the knowledge of COVID-19 at the time) . The Tribunal noted that the extent of circumstances of danger could reasonably have been expected to be averted through social distancing and use of PPE along with regularly hand washing if they wished to do so. While Section 100 could apply to any steps to protect their vulnerable family members, rather than himself, the steps the employee had taken were not appropriate.

Employers should proceed with caution to avoid potential claims for personal injury and indirect discrimination where employees have clinically extremely vulnerable family members are involved.