An employee who skipped work owing to coronavirus fears has lost his claim forunfair dismissal.
Facts
Leeds Laser Cutting Limited employed Mr Rodgers (R). He worked in a spacious
warehouse-style room with four colleagues. On 16th March 2020 one of these
colleagues displayed symptoms of coronavirus and was sent home to self-isolate.
The first national lockdown was announced on 23rd March, but the managers told
staff that the business would remain open. By this time some measures had been
put in place to reduce the risk of viral transmission. On 25th March R developed a
slight cough, although he blamed it on the temperature and dust within the
workplace and worked as normal through to the end of Friday 27th March.
However, on 29th March he sent a text message to his employer saying that due to
concerns over his children’s health he would be staying off work until lockdown
eased. He explained that one child had sickle cell anaemia, and he said of his
seven-month-old baby, 'that we don’t know if he has any underlying health problems
yet' .The manager receiving the text simply replied, 'ok mate, look after yourself' .
There was no further communication between R and his employer until 24th April
when R texted to say that he understood he had been sacked and asked for his
P45.
The claim
R subsequently claimed unfair dismissal on special grounds which are reserved for
cases where an employee has serious health and safety concerns.
These protected rights are enshrined in s.100 Employment Rights Act 1996 and are
designed to ensure that no one, regardless of their period of service, is forced to
work when they are in danger. To obtain the protection, R needed to show that he
stayed away from work owing to a reasonable belief of serious and imminent
danger.
Judgment
The judge concluded that R was not entitled to this protection.
Firstly, there was evidence that workplace safety had been properly managed. For
example, the employer completed a coronavirus risk assessment, and briefed staff
on increased hand washing, wiping down surfaces and avoiding gathering at break
times. The judge felt that these measures and the low occupancy of the work area
meant the risk was low.
Secondly, although the claimant described concerns to the tribunal, such as some
tasks which required two people, he had not raised these at work.
Thirdly, R was inconsistent in his testimony, for example he stated that no measures
would make it safe enough to go to work, and yet he took work in a pub. The judge
concluded that the claimant’s decision to stay away from work was not directly
linked to his working conditions.
Stay safe
Insulate yourself from such claims by ensuring that you’ve completed a coronavirus
risk assessment and implemented measures to make the workplace safe.
Continually enforce your requirements including social distancing, enhanced
cleaning and other rules as applicable.