Covid-19 has caused many problems for employers but was it automatically unfair to dismiss an employee who refused to attend work over concerns about the risk of Covid-19 to his vulnerable children?

No, held the Employment Appeal Tribunal (EAT) in the recent case of Rodgers v Leeds Laser Cutting Ltd.

Mr Rodgers refused to attend work during the first national lockdown because he had vulnerable children who could become very ill if they caught Covid-19. He was dismissed and claimed that he had been automatically unfairly dismissed because he had exercised his right not to return to the workplace to protect himself from circumstances of danger, which he had reasonably believed were serious and imminent and which he could not reasonably have been expected to avoid.

A tribunal dismissed the claim. Mr Rodgers had general concerns about Covid-19, but these were not directly attributable to the workplace. Further, his actions (e.g. not wearing a facemask, leaving his home during self-isolation, and working in a pub during lockdown) did not support his argument that there were circumstances of danger which he believed were serious and imminent.

Mr Rodgers appealed. The EAT accepted that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented him from returning to the workplace. However, on the facts of this case, the tribunal had found that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large. Even if the tribunal had been wrong about this, it had been entitled to find that Mr Rodgers could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands.

Therefore, the appeal was dismissed.