The Perils of returning to work after Covid

31 May 2022

The recent case of Rodgers v Leeds Laser Cutting Ltd EAT highlights the challenges facing employers when employees refuse to return to work following COVID. In this case the employer had mainly implemented the safety provisions recommended by an independent consultant. Despite this the Claimant refused to attend the workplace citing concerns for his vulnerable children. This was despite the fact that he engaged with others outside of work and worked in a bar during the lockdown. He absented himself from work from the end of March 2020 and at the end of April the employer sent out his P45, there being no contact from him. The employee brought a claim under s100(1)(d) Employment Rights Act 1996 (ERA) citing automatic unfair dismissal for leaving ‘in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert’.

The Employment Tribunal  found, and this was endorsed by the EAT, that an employee who was dismissed after he refused to return to the workplace during the Coronavirus pandemic was not automatically unfairly dismissed under s100 ERA. The Tribunal concluded on the facts that the employee did not reasonably believe that there were circumstances of danger that were serious and imminent, at work or at large, that prevented him returning to his place of work. Whilst it was accepted that the pandemic could create a situation where s100(1)(d) ERA was actionable, this was a question of fact to be decided in every individual case and was not a ‘catch all’. The Tribunal explored and found that the Claimant could have taken personal steps to reduce the risk to himself and his children.

This case highlights the difficulties that many employers have had and are now experiencing in inducing employees to return to work both during and after lockdown.


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