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EAT rules that employee was fairly dismissed after refusing to come to work over Covid fears

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Rodgers v Leeds Laser Cutting Ltd Mr Rodgers was employed as a laser operator. During March 2020, he informed his employer that “unfortunately [he had] no alternative but to stay off work until the lockdown [had] eased”. His reasoning was that he had small children about whom he was concerned. There had been a suspected case of the virus at the warehouse.

The employment tribunal described the workspace at the business as large. Various dimensions were offered by the witnesses, including 12000-14000 square feet, the size of half a football pitch and ‘not a small building; like a big big garage’. There were typically five people working on the shop floor at the material time.

EJ Anderson dismissed the claim, as he found that Mr Rodgers concern related to the pandemic generally, not to the specific working conditions of the warehouse. The judge remarked that, if a concern regarding the virus itself were enough to meet the statutory test, then any employee or worker could simply ‘down tools’ on the basis that the virus was circulating in society.

Mr Rodgers had not raised any specific concerns with his employer about the safety of the workplace, and had not taken appropriate steps to communicate them. Crucially, in the text exchange where he informed his employer he was to absent himself from work, there was no reference to the working conditions of the warehouse. As such, his employer would have had no way of knowing that this was the reason he was not coming to work.

The Employment Tribunal therefore dismissed Mr Rodgers’ claim for automatic unfair dismissal.

The appeal brought to the EAT on 12 April 2022 by Rodgers asked whether the ET had made an error in concluding Rodgers’ belief was one of a serious and imminent danger at large rather than at the workplace. However, the EAT dismissed the appeal.

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