Is It Fair To Dismiss If An Employee Refuses To Return To The Workplace After Lockdown?

There has been a significant number of column inches devoted to the many workplace issues Covid has presented for employers.

With lockdown easing and organisations reporting a return/imminent return to the workplace, one key issue for many is how to deal with those employees who refuse to return on health and safety grounds.

Tribunals are now beginning to hear Covid related claims and this is providing some helpful guidance to employers on these issues. One such case has examined whether an employee was unfairly dismissed after refusing to return to work due to concerns he could infect his children – one of whom has sickle cell anaemia and the other was a 7 months’ old baby at that time.

And now for the spoiler – the court found he was not unfairly dismissed.

But this was a very fact-specific outcome.

The circumstances

The claimant worked in a large warehouse which was described as about the size of half a football pitch and, generally, there would be 5 others working with him. The employer had implemented a number of Covid secure measures following a risk assessment that had been carried out by an external professional. Those measures included informing staff of the need for social distancing and hand washing. A mask dispenser was also placed at the door for staff use.

On 16 March 2020, a colleague of the claimant’s had Covid symptoms and so began a period of self-isolation. The claimant then developed a cough on 25 March 2020, however, it was put down to the dust and temperature within the warehouse. The claimant attended work on 26 and 27 March 2020. But after leaving work on 27 March 2020, the Claimant notified the employer he was not coming back “until the lockdown has eased” due to his concerns of the effects Covid would have on his children if he contracted it and then passed it to them.

The claimant was subsequently dismissed for failing to attend work.

As the claimant had less than 2 years’ service, he could not bring a claim for ordinary unfair dismissal. Instead, he issued a claim for automatic unfair dismissal on grounds that he refused to return to work because he reasonably believed his workplace would place him in serious and imminent danger from contracting Covid. This type of claim has no minimum qualifying service requirement.

What do the tribunal’s conclusions mean for employers?

Although this is a first instance decision, and so will not set a legal precedent, it is still a useful information source. In this case, the claim failed for a number of reasons including:

1. the claimant’s evidence was found to be both “vague” and “contradictory”.
2. the claimant had failed to raise his “serious and imminent danger” concerns with the company – at no time did he inform the employer that his decision to refrain from attending the workplace was because of his concerns about the safety measures that were in place at that time. (For this type of claim to be successful, it’s crucial that the employer knows about the concerns.)
3. the claimant did not demonstrate that he believed the “serious and imminent” danger was associated just with his workplace – instead, it appeared to the tribunal that he associated the danger with everywhere and his intention was to remain absent until the national lockdown was over.

Most importantly, although this claim was not successful, the tribunal concluded that this type of claim could be successful in other cases. Which considerably increases the scope of claims to those who do not have 2 years’ service. And, of course, those with more than 2 years’ service have the additional protection from ordinary unfair dismissal which will nearly always result in a successful claim where no process prior to dismissal is followed.

This case is therefore a salutary reminder that if any member of staff raises concerns about returning to the workplace, the employer should talk with them about those concerns. And those conversations should be designed to enable employers to:

• understand what the concerns are,
• explain the steps they have put in place to protect staff (these steps should be aligned with the government’s sector-specific guidance and the HSE guidance), and
• consider what, if any, further measures/adjustments should be implemented.

Whilst sanctions (and ultimately dismissals) may be lawfully applied to some who refuse to return to work, it’s likely that many employers will find themselves on the wrong side of a decision where those sanctions are not properly handled and/or a proper process is followed.