REWARD
Employment law latest
In each issue, Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different employment law cases
Covid concerns not valid reason for refusing to work An employee, who was dismissed for his refusal to work due to perceived dangers posed by the Covid pandemic, has lost his appeal for automatically unfair dismissal. In Rodgers v Leeds Laser Cutting Ltd, the claimant started working in a warehouse in 2019, which was described to be the size of half a football pitch. In total, he would typically work with five other people each day. Following the first lockdown announcement in March 2020, the warehouse remained open, in line with government guidelines for essential services. The respondent put measures in place to control the risk of Covid transmission and keep workers safe, including: ● social distancing ● regular cleaning of workstations ● staggered start and finish times ● the voluntary use of facemasks, which were provided. In late March 2020, the claimant developed a cough which he attributed to dust in the warehouse, but couldn’t get a Covid test to be sure, so decided to self- isolate. He obtained an isolation note from NHS111. He later texted his manager to inform him he was going to stay off work until the lockdown had eased. He didn’t want to risk bringing Covid home to his children, as one was particularly vulnerable due to having sickle cell anaemia. His manager responded to say: “Okay, mate, look after yourself.” No further communication took place until 24 April 2020, when the claimant received his P45 in the post. He
subsequently raised a claim for automatic unfair dismissal under Section 100 of the Employment Rights Act 1996. Section 100 refers to employees’ rights not to be subjected to detriment, when taking reasonable steps to protect themselves or others from serious and imminent danger, which they can’t be reasonably expected to avoid. Specifically, the claimant asserted he had been unfairly dismissed, as the reason for his non-return to work was due to the serious and imminent danger posed by the Covid pandemic, for which allowances should have been made. The employment tribunal accepted that the pandemic created some element of danger at work, but the risk of danger was no greater in the workplace than anywhere else The employment tribunal (ET) accepted that the pandemic created some element of danger at work, but the risk of danger was no greater in the workplace than anywhere else. The ET questioned the reasonableness of the claimants’ belief. In making the decision, the employment judge specifically considered the fact that the workplace was
large with few employees, so keeping a safe distance was generally possible. Additionally, the employee: ● didn’t ask for a mask when they were readily available ● had driven a friend to the hospital when he was supposed to be isolating ● worked in a pub during lockdown. As a result, his claim was dismissed. On appeal, the employment appeal tribunal (EAT) agreed fully with the ET decision and upheld the original outcome. It is, however, important to note that the tribunal stated a claim for ordinary unfair dismissal would likely have been successful, had the employee had the necessary service to bring it, due to the employer’s failure to follow a reasonable dismissal procedure. Similarly, although the outcome will be welcomed by employers, it must be realised that the circumstances of the case were very fact specific. It wasn’t the fact that the claimant refused to come into work due to safety concerns that was the issue, it was that he failed to demonstrate what these concerns were. Had he done so, and had these been valid concerns ignored by the organisation, the outcome may have been very different. Therefore, employers should take all health and safety complaints seriously, and complete a full investigation, with measures implemented as necessary, to appease staff concerns in this regard. Employee faced discrimination arising from disability due to hot-desking policy The ET recently concluded that an employee was treated unfavourably
| Professional in Payroll, Pensions and Reward | July - August 2022 | Issue 82 34
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