Mr Rodgers v Leeds Laser Cutting
An employer was recently taken to an employment tribunal for unfair dismissal after they dismissed an employee with less than two years’ service for his refusal to return to the workplace. The claimant asserted that he had concerns regarding the Company’s Covid secure measures and brought a claim for automatic unfair dismissal.
The claimant stated that he believed he was in serious imminent danger whilst at work despite the employer carrying out a risk assessment, implementing social distancing, wiping down surfaces and encouraging additional hand washing. The employer also attempted to implement staggered shift and lunch times but there was evidence to suggest it was only partially adhered too.
The claim was dismissed as the tribunal believed there was sufficient evidence to show that the necessary measures were put in place and that the employee was not in serious immediate danger. The tribunal stated that they believed Mr Rodgers concerns regarding Covid-19 were general ones which were not directly attributable to the workplace.
It must be taken into consideration that this employee had less than two years’ service and relied upon the Employment Rights Act 1996 in this case, which specifically states:
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
…… (d) 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, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.
Whilst this case highlights the importance of having Covid secure workplace and the necessary risk assessments, the outcome may have been very different if the employee had the relevant qualifying service due to the lack of process followed by the employer in dismissing this employee.
This is very case specific and although the claim was dismissed the statutory provision of protection in cases of serious and imminent danger may apply in a situation where an employee raises concerns relating to COVID-19 risks.
Communication is key between employer and employee, regarding workplace risks, the necessary restrictions and the measures that have been implemented to minimise the risks.
What does this mean for employers?
- If any employee is refusing to return to work as they are concerned about the measures in put in place, discuss their concerns with them and reiterate the relevant Covid-secure measures. Provide them with a copy of your risk assessment.
- Should they still refuse to return to the workplace and the necessary Covid-secure measures are in place, and you believe these are genuine concerns you may want to consider remote working where possible.
- If it is not possible to allow them to work from home and you have identified the risks by carrying out a risk assessment and put the necessary measures in place and the employee is unreasonably refusing to return to the workplace you must follow the Company’s absence procedure as this may be considered as unauthorised absence.
As an employer you are legally bound by:
- The Health and Safety at Work, etc Act 1974 Section 2
“to ensure, as far as reasonably practicable, the health, safety and welfare at work of all (their) employees”
Employers are also legally required to consult with their employees on health and safety matters. This legal duty is defined in two sets of regulations:
- The Safety Representatives and Safety Committees Regulations 1977 – which cover unionised workplaces.
- The Health and Safety (Consultation with employees Regulations 1996 – which covers non-unionised workplaces.
This just highlights the importance for the employer to implement a suitable Occupational Health and Safety Management System (OHSMSs) such as ISO 45001 certification formally known as OHAS 18001 or follow guidance from the HSE (HSG65: Managing for Health and Safety HERE) so issues such as those identified in this case would have been identified during the PLAN, DO CHECK, ACT (PDCA) process. Organisations can produce their own OHSMSs, however there is advantages to working towards a recognised standard.
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