COVID cases and the need for a COVID Policy
In the recent case of Rodgers v Leeds Laser Cutting Ltd, the Employment Appeal Tribunal confirmed that an employer’s decision to dismiss an employee that refused to return to work due to concerns regarding COVID – 19 was not automatically unfair.
Mr Rodgers claimed Automatic Unfair Dismissal on the basis of health and safety as he had raised concerns with his employer about attending work during lockdown. However, the Tribunal concluded that 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.
Interestingly, in its concluding remarks, the employment tribunal rejected the employee’s argument that, even with safety precautions in place, the existence of COVID-19 creates circumstances of serious and imminent danger which cannot be averted. Such an argument would mean any employee could refuse to work in any circumstances simply by virtue of the COVID-19 pandemic. Rather each case must turn on its facts and merits.
It’s clear from the caselaw that a dismissal linked to the raising of concerns about inadequate PPE or Covid safe measures and raising general concerns about Covid, and the workplace risks of spreading Covid could well lead to successful claims of Automatic Unfair Dismissal where there is a serious and imminent danger that cannot be averted. However, where there is no reasonable belief that the risk is serious and imminent or where the taking of reasonable measures could avert that danger, such as social distancing, the use of masks and hand sanitisers, but the employee does not take such steps, the claims are unlikely to be successful.
Further, caselaw indicates that a fear of catching COVID 19 and a need to protect oneself is not a protected belief under the Equality Act as it it’s narrowly held and time specific.
There are many cases relating to COVID-19 working their way through the Tribunal system and we beginning to understand how Tribunal’s will approach the unique issues that COVID-19 created in workplaces.
Whilst it may feel like such cases relate to historic issues they will actually set out the framework for how COVID related challenges are approached in the future. In an environment where the management of COVID risk is now firmly in the hands of employers rather than being managed by the Government, it’s important that employers are prepared and clear in how they plan to manage COVID risk in their workplace.
The best way to address this is to put in place our COVID-19 Policy, which will clearly set out your expectations and the requirements for managing issues that arise in the future. It is particularly important to be clear about your expectations when it comes to matters such as testing, ongoing COVID safety measures and the pay implications of isolation.
Our policy will ensure you communicate a clear message regarding your expectations to your staff and is available for purchase for £150 plus VAT. This policy will be updateable should further changes in the applicable government guidance arise.
Policy documentation is often a businesses first line of defence when it comes to legal claims as it helps to demonstrate that due care and attention to the issue at hand has been had. When it comes to managing Covid-19 risk in the workplace, a lack of policy documentation will make it harder for you to keep control of the issue in practice and take action against staff members who fail to follow government guidance.
Author: Sarah Edwards, Senior Employment Law Solicitor