Covid-19: employee who stayed away from work during lockdown did not have a reasonable belief in "serious and imminent" danger 


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The Employment Appeal Tribunal (EAT) has held in Rodgers v Leeds Laser Cutting Ltd that the dismissal of an employee. 

The employee told his manager that he would not return to work until after lockdown because he was afraid that he would infect his children (one of whom has sickle cell disease, and both of whom are vulnerable) with Covid-19 was not automatically unfair under section 100 of the Employment Rights Act 1996 (which applies where an employee leaves or refuses to return to the workplace in circumstances of danger).

The EAT held that the requirement that an employee believed that circumstances of danger were "serious and imminent" was a requirement for a reasonable belief on the part of the employee. Here it found that there was no reasonable belief. The claimant had genuine concerns about the pandemic, and about the safety of his children, but the tribunal had made various findings that counteracted the claimant's contention that serious and imminent circumstances of danger prevented him returning to work. These included the risk assessment which his employer had carried out, which allowed for social distancing, sanitisation of workspaces, and staggered start and finish times. It also found that the claimant had driven a friend to the hospital (the day after leaving work) when he was supposed to be self-isolating, and had worked in a pub during lockdown. The EAT concluded that there were steps that could have been taken by the claimant to avert the danger at work, including wearing a mask, socially distancing and handwashing in the same way as he did outside the workplace.

Take note: The decision in Rodgers shows that it is not enough for an employee to have had genuine concerns about the pandemic; they must be able to show that they reasonably believed that circumstances of danger were "serious and imminent". Here the employer had carried out a risk assessment and implemented various measures to protect the health and safety of its employees, and the claimant had failed to raise any specific workplace concerns. In addition it was relevant that the claimant had not gone to great lengths to minimise the risks of Covid while not at work and so this called the reasonableness of his belief that coming to work presented serious and imminent danger into question.

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