Refusing to Attend the Workplace for Fear of Coronavirus – A Reasonable Excuse?
Key Contact: Claire Knowles
Author: Adam McGlynn
Most employees will need to attend the workplace to some extent during their employment. Perhaps it is their normal place of work and/or their duties can only be performed at certain locations. Even those who work more flexibly may have meetings, events, or administrative tasks which occasionally require their presence. Over the course of the Coronavirus pandemic, Government guidance on workplace attendance has been uncertain at best, however, as employment claims from 2020 start reaching their conclusions, we now have some further clarity on how tribunals are approaching this question.
Employees are protected against detriment or dismissal in certain health and safety situations including where they leave their workplace, refuse to return to it, or take other steps to protect themselves because they reasonably believe there is serious and imminent danger. The relevance of this protection has been widely discussed in relation to its application during the Coronavirus pandemic. The recent case of Rodgers v Leeds Laser Cutting examined to what extent belief in such a level of danger could or, in this case, could not be reasonable.
Rodgers v Leeds Laser Cutting
Mr Rodgers worked as a laser operator, a job that could only be done on-site. A week after the first national lockdown on 23 March 2020, Mr Rodgers informed his manager that he would no longer attend the workplace until the lockdown had eased because he was concerned about transmitting COVID-19 to his children. He was dismissed shortly afterwards and he claimed this dismissal was automatically unfair as it was in response to him exercising his rights to protect himself.
The tribunal found that, when Mr Rodgers took action, no reasonable belief in serious and imminent workplace danger could be established. Particular learnings from the decision include:
- The company had pro-actively sought external health and safety support to ensure the workplace was safe and complaint with Government guidelines at the time.
- Mr Rodgers did not raise any specific concerns with the state of the workplace itself and did not seek to take any steps which could resolve his concerns before absenting himself without notice.
- Mr Rodgers breached self-isolation guidance around the time of absenting himself, demonstrating that his concern about COVID-19 was not quite as substantial as claimed.
The Tribunal’s decision
The Tribunal concluded that the simple fact that the Coronavirus pandemic exists, is not sufficient in itself to excuse employees from the workplace. In particular, it may not be reasonable to believe there is serious and imminent danger if the employer has taken safety precautions recommended under Government guidance.
As claims of this nature have not yet reached higher than a first-instance judgment in the Employment Tribunal, future claims will not necessarily be bound by the approach of the tribunal in Rodgers v Leeds Laser Cutting. Additionally, there are a number of fact specific distinctions which may impact disputes around attending the workplace. For example, reasonable belief at the time will be dependent on Government guidance applicable to the employer’s sector (which is subject to change e.g. stronger, more restrictive guidance could give rise to a more reasonable belief in danger) and the steps the employer has taken in practice to comply with the Government guidance and create a safe workplace. Covid-19 transmission rates, vaccination rates, shielding guidance, and numerous other factors could also impact the reasonableness of a belief that there is serious and imminent danger.
Employees may have concerns about returning to the workplace, but a transparent and supportive approach can help reassure staff that their safety is being prioritised. Consulting with staff can provide clarity on employee concerns and guide the employer on any further safety measures which may be necessary, particularly where the employee may have a disability which requires reasonable adjustments to be made.
If you would like further advice on managing issues in relation to employees returning to the workplace, please feel free to contact our Employment Team.