Tribunal considers COVID-19 related unfair dismissal

In this particular case, the Tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known by the employee at the relevant time when actions were taken.

The Tribunal felt that Mr Rodgers had failed to establish a reasonable belief that he was in serious and imminent danger if he remained at work because:

• Mr Rodgers had himself breached self-isolation guidance to drive a friend to hospital the day after he left work.
• The respondent had implemented the precautions that were recommended by the Government at that relevant time (social distancing and handwashing).
• Mr Rodgers’ message to his manager did not mention concerns about workplace danger and, in light of the fact his employer had already put in place steps to reduce the risk of transmission, he could not point to any such danger.
• Mr Rodgers had failed to take steps to try and avert any danger and had not raised concerns with his manager before he left work. The Tribunal felt this was not appropriate in the circumstances.
• In particular, the Tribunal was concerned that Mr Rodgers tried to argue that COVID-19 created circumstances of serious and imminent workplace danger, even where employers had implemented appropriate safety precautions. To accept such an argument would allow any employee to leave any workplace and rely on sections 100(1)(d) and (e).

Taking these facts into consideration, the Tribunal concluded that Mr Rodgers’ decision to remain off work was not directly linked to his working conditions and was, instead, related to general concerns about the pandemic.

It is important to note that this decision is not binding, and each case will be reviewed on its own specific facts.

However, the case does reinforce the importance of assessing workplace risks in relation to COVID-19, implementing appropriate measures to reduce those risks and effectively communicating with staff so that they are clear on what has been put in place to reduce risk.

Employers who do this are likely to establish a defence to any claims brought under sections 100(d) and (e) ERA 1996 as it will be harder for employees to establish that it was reasonable for them to believe their workplace was dangerous.