was an employee fairly dismissed when he refused to return to work until lockdown was lifted?

Yes, held an Employment Tribunal in the recent case of Rodgers v Leeds Laser Cutting Limited.

In the light of the pandemic there are a number of cases trickling through the Employment Tribunals now where employees have claimed that they have been unfairly dismissed, relying on section 100 of the Employment Rights Act 1996 which is a health and safety provision. These are first instance decisions so are not binding in law and each will turn on its own facts.

In this case Mr Rodgers claimed that he had been unfairly dismissed under section 100(d) and (e) of the Employment Rights Act 1996 (“ERA”). These sections can be summarised as follows:

An employee shall be regarded as unfairly dismissed if the reason, or the principle reason, for the dismissal is that in circumstances of danger which the employee reasonably believed to be serious and imminent, he left or refused to return to his place of work or he took appropriate steps to protect himself or other persons from danger.  

Mr Rodgers messaged his employer on 29 March 2020 stating he would be staying away from work “until the lockdown has eased”. He had claimed that he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia). Shortly after this he was dismissed. 

Mr Rodgers was an employee of Leeds Cutting Limited for less than 2 years and claimed that he has been automatically unfairly dismissed for exercising his health and safety rights under section 100(d) and (e) of the ERA.   

In respect of reasonable belief, the Tribunal held that it would have to consider the circumstances at the time. On the facts the Tribunal decided that a belief that he was in serious and imminent danger was not established for a number of reasons including: that Mr Rodgers had breached the lockdown rules separately to take his friend to the hospital on 30 March 2020, the message to his employer did not make reference to any concerns about workplace danger or that he was in such danger nor had he raised any concerns with his employer previously. At the time his employer had implemented the safety measures recommended by the Government in respect of social distancing and hand washing.

The tribunal rejected Mr Rodgers claim that he had been unfairly dismissed.

You can read the full judgment here.

This update was written by Joanne Sinclair, Trainee, didlaw.