Dismissed worker loses coronavirus case

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.