The first case relating to dismissals and COVID 19 has reached the Court of Appeal where the claimant lost his case under section 100 of the Employment Rights Act 1996. The legislation protects employees from unfair dismissal if they refuse to return to work where they believe there is a “serious and imminent” to their health and safety.
The claimant Mr Rodgers worked at a large factory in a warehouse producing goods for the NHS and therefore remaining open during the pandemic. It was operating on skeleton staff and therefore social distancing was easily manageable. Following a period of isolation advised by NHS England after developing a cough, Mr Rodgers failed to return to work as he had two young children, one with sickle cell anaemia meaning they were classed as high risk and Mr Rodgers believed that passing the virus could make his child extremely ill.
Following his dismissal, Mr Rodgers made the claim under section 100 and the Court of Appeal when deciding questioned whether the employee believed that there were circumstances of serious and imminent danger at the workplace and was there belief reasonable? They also questioned whether this perceived danger was the reason for him leaving the workplace and was this refusal to work the main reason for the dismissal.
The Court of Appeal held that the concern of developing Covid 19 was in general and not strictly related the workplace. Mr Rodgers failed to back up his claims and he had been caught driving a friend to hospital when he should have been self-isolating and therefore breaching COVID rules himself. His workplace were adhering to COVID rules and he could easily socially distant.
The judgement stated that employees should be protected from dismissal if they have to absent themselves from danger in the workplace even if it is a reasonable belief in danger, rather than an actual danger.
It will be interesting to see further COVID cases reaching the higher courts in the coming months.