COVID-19 dismissal not automatically unfair

Updated: May 20


The first cases around COVID-19 dismissals and now starting to trickle through to the Employment Appeal Tribunal.


In Rodgers v Leeds Laser Cutting, Mr Rodgers was dismissed as he refused to attend work during the first national lockdown as his children were clinically vulnerable.


Mr Rodgers broght a claim pursuant to sections 100(1)(d) and (e) Employment Rights Act 1996 (“ERA”) in which he asserted that he had left and/or had not returned to his place of work because he reasonably believed there were circumstances of danger that were serious and imminent arising out of the Coronavirus pandemic, and which he believed could not be reasonably averted.


These are generally referred to as health and safety related dismissals and form a type of dismissal which as classed as being automatically unfair, since they do not require an employee to have two years service before they can bring an unfair dismissal claim.


The EAT found that an employee can have genuine concerns about the Coronavirus pandemic, and that these could amount to a serious and imminent risk outside the workplace sufficient to prevent an employee returned to work.


However, in Mr Rodgers' case, the EAT found that MNr Rodgers did not have a reasonable belief that there were serious and imminent circumstances of danger, either at work or elsewhere, that prevented him from returning to work. This was a case whic turned on the facts. Leeds Laser Cutting had undertaken extensive risk assessments and put in place safety measures to mitigate against the risks arising from the Coronavirus pandemic. Mr Rodgers had also acted contrary to his argument tha the believed there was a serious and immindent risk by refusing to wear a mask in public and working in a pub during lockdown.