An employee who lost his job for refusing to work during the pandemic, claiming his workplace posed a ‘serious and imminent’ danger, has lost his case at the Court of Appeal.
The case, Rodgers v Leeds Laser Cutting Limited, was the first Covid-19-related employment case to be heard in the Court of Appeal.
Mr Rodgers worked in a large warehouse which remained open during the pandemic lockdowns as it was producing materials for use in the NHS. The claimant was one of a handful of staff working in the warehouse, so social distancing was not dfficult. Face masks were also provided by the organisation.
He worked in the warehouse as usual during the first week of the lockdown. However, he developed a cough and was advised by NHS 111 to self-isolate.
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On 29 March, he sent a text message to his manager that said: “Unfortunately I have no alternative but to stay off work until the lockdown has eased. I have a child of high risk as he has [sickle cell anaemia] & would be extremely poorly if he got the virus & also a 7 month old baby.”
Rodgers did not return to work when his self-isolation note expired on 3 April 2020.
Later that month he found out he had been dismissed, although it was unclear from the tribunal’s judgment how he became aware of this. Rodgers texted his manager to ask for his P45 and a written explanation for why his employment had ended.
In his case before the employment tribunal, which was heard in 2021, Rodgers alleged that his dismissal was automatically unfair as he had exercised his legal right to leave his workplace 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.
However, the tribunal held that his dismissal had been fair as Rodgers’ concerns related to Covid-19 in general, not the risk it posed in the workplace. He also did not provide sufficient evidence to back up his claim, and had driven a friend to the hospital when he was supposed to have been self-isolating.
The tribunal’s ruing was upheld by the Employment Appeal Tribunal, which agreed that the claimant did not hold a reasonable belief that there were serious and imminent dangers that prevented him from returning to work.
In its judgment handed down yesterday, the Court of Appeal dismissed Rodgers’ claim that the tribunal judge had erroneously concluded that because the claimant’s belief was one of a serious and imminent danger “at large”, his belief that his workplace presented a danger was not objectively reasonable.
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Lord Justice Underhill’s judgment says: “[The tribunal judge] was simply looking at the claimant’s belief and considering whether it was reasonable. The ‘reasons set out above’ are… in essence, that ‘it was not hard to socially distance and measures were in place to reduce the risk of Covid-19 transmission’. As we have seen, there is no challenge to that conclusion in its own terms.”
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