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An employment tribunal has held in Rodgers v Leeds Laser Cutting Ltd that the dismissal of an employee who told his manager he would not return to work until after lockdown because he was afraid that he would infect his children with Covid-19 was not automatically unfair.

The claimant sent a message to his manager on 29 March 2020 to state that he would be staying away from his workplace "until lockdown has eased" because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with Covid-19.  He was dismissed a month later.  As he did not have the required two years' service to claim ordinary unfair dismissal, he alleged that he had been automatically unfairly dismissed for exercising his rights under section 100(d) and (e) of the Employment Rights Act 1996 (this provides employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger).

The tribunal dismissed the claimant's claim.  It found that despite his concern about Covid-19 he had breached self-isolation guidance to drive a friend to hospital on 30 March 2020 (the day after leaving work). The respondent had implemented the government's safety guidance which, at the time, advised hand washing and social distancing and the claimant had not mentioned concerns about workplace danger.  Finally the claimant had not taken any steps to avert danger and neither had he raised concerns with his manager before absenting himself from work.

Take note: The claimant's argument that Covid-19 created circumstances of serious and imminent workplace danger irrespective of the safety precautions taken by his employer was rejected by the tribunal.  To accept this would mean that any employee could rely on section 100(1)(d) and (e) to leave the workplace on the basis of the existence of the pandemic.  In order to reduce the risk of successful claims employers should ensure that they implement proper health and safety measures under existing government guidance.