6 May Can you dismiss workers who refuse to attend the workplace over COVID-19 concerns? Can you dismiss workers who refuse to attend the workplace over COVID-19 concerns? I do not intend to digress too much into the world of Employment Law or HR, but a recent case (Rodgers v Leeds Laser Cutting Limited ET/1803829/2020) has proved very interesting. Over the last year (and counting), COVID-19 has created many challenges for both employers and employees. One notable area of consideration and concern has been the delicate and difficult issue of dismissals related to health and safety reasons. A recent case has shed more light on how Tribunals may deal with the pandemic-related workplace issue of employees’ refusal to work on health and safety grounds, due to fear of COVID-19. Facts relating to the case After a colleague self-isolated after starting to show symptoms of COVID‑19, Mr Rodgers (the Claimant) refused to come into work. He informed the Company that he would not return to work until lockdown eased, as he was concerned for his very young child, who had increased vulnerability to COVID infection. After a month of refusing to attend work, Mr Rodgers was dismissed. As he did not have sufficient service to claim ordinary unfair dismissal, he claimed that he had been automatically unfairly dismissed for exercising his rights to leave the workplace and take steps to protect himself where he reasonably believed there was a serious and imminent danger (refer to sections 100(1)(d) and (e) of the Employment Rights Act 1996). Relevant Employment Tribunal Finding While there is more to the decision, the Employment Tribunal upheld Mr Rodgers’ dismissal on the basis that an employee could not rely on general health and safety concerns to refuse to work, as it was found that the mere existence of COVID-19 does not automatically create a serious and imminent danger in the workplace that cannot be avoided. In short, Mr Rodgers’ “refusal to work in any circumstances simply by virtue of the pandemic”, was not reasonable. The Employment Tribunal placed considerable weight on the clear evidence that the Employer had implemented reasonable and satisfactory health and safety measures, in line with Government guidance at the time, including: social distancing wiping down surfaces staggering arrival times, and providing personal protective equipment (PPE). It should be noted that this decision is not binding, and is specific to the facts of the case. It does, though, highlight the importance and benefit for employers of devising and thoroughly implementing suitable and sufficient COVID-19 appropriate health and safety measures, both as a means of heading off any potential claims, and to successfully contesting any actual claims. It is likely that many other such cases will pass through Employment Tribunal panels in the near future. Refusing to go to work (from the House of Common Library, 05 May 2021) All workers have an obligation to obey lawful and reasonable instructions given by their employer. However, employees who refuse to attend the workplace because they reasonably believe that there is a serious and imminent danger have certain protections under employment rights legislation. The protections also apply if an employee takes steps to protect others from such danger. Whether an employee has a reasonable belief will always depend on the facts. The fact that an employer is complying with the Government’s working safely guidance will be a relevant factor, although other factors, such as the employee’s vulnerability to COVID-19 will also be relevant. The Government’s working safely guidance says that there are certain workers who should not be asked to attend the workplace, such as those required to self-isolate. Employers must ensure that the measures they adopt do not discriminate on the basis of protected characteristics, including age, sex, disability and pregnancy. Health and safety law offers special protection to new and expectant mothers who must be suspended on full pay if they cannot be offered work that is safe.