The Employment Tribunal decided that in the circumstances the Claimant had not taken any preventative steps, and had decided to leave work without first raising any concerns with his employer.

In Rodgers v Leeds Laser Cutting, the Claimant had been employed as a laser operator since  14 June 2019. In March 2020, the business remained open with measures in place to prevent the spread of COVID-19. The Claimant had two young children at home: one was a seven month old infant, and the other had sickle-cell anaemia. The Claimant therefore had concerns about the spread of COVID-19 and wanted to protect his family.

On 25 March 2020 the Claimant started to develop a cough but he attributed this to dust at the premises and the temperature. The Claimant was not concerned that this was a symptom of COVID-19 but he nevertheless obtained a self-isolation note from NHS 111 for the period 28 March 2020 to 3 April 2020. On 30 March 2020, during the period when he should have been self-isolating, the Claimant drove one of his colleagues to the hospital.

On 29 March 2020 the Claimant sent a text message informing his manager that he would not be returning to work ‘until the lockdown has eased’. He did not express his concerns about the safety standards at the premises and his concerns appeared to relate to the pandemic generally.

The Claimant did not contact the Respondent further regarding the possibility of furlough, sick pay, or to state that he had any intention of returning to work. The Respondent did not contact the Claimant, believing that it was up to the Claimant to get back in contact after leaving work.

The next time the Claimant and the Respondent had any contact was on 24 April 2020, when the Claimant sent a text message to his manager stating that the Claimant had just heard of his dismissal and requesting written confirmation.

It is accepted that the business operated out of ‘a large warehouse-type space’ where around five people worked at any one time, and where the Claimant stated that it was not hard to social distance. The Claimant also accepts that several conversations occurred where employees were reminded about the importance of hand-washing. A mask dispenser was placed at the entrance of the premises but the Claimant states that it had run out of masks. The Respondent stated that masks were available at the manager’s office, and no one had reported that the masks had run out so that they could be re-filled.

At the Tribunal, the Judge stated that the Claimant gave conflicting accounts about his concerns regarding COVID-19. He texted his employer to say that the safest place for him was at home yet the following day he drove one of his colleagues to the hospital. The Claimant stated that he had conversations with his colleagues about the safety measures in place at the premises but that he was unable to state for sure that he had informed his manager of his concerns. The Claimant also gave evidence that he had not left home for nine months, but also that he had spent some time working at a pub.

The Judge dismissed Mr Rodgers’ claim, stating that in the circumstances he did not believe that Mr Rodgers was in serious and imminent danger as he had claimed. He expressed that the mere existence COVID-19 could not amount to serious and imminent danger, and warned that if this was the case employees would be able to down tools during the pandemic, even if their employer had taken steps to ensure that the workplace was safe.

The Judge stated that the Claimant’s decision to absent himself from the workplace until the lockdown ended could not be the responsibility of the Respondent, given that the Claimant had not specified to his employer that his concerns related to safety at his place of work.

Cases similar to this will likely not be unusual in the present circumstances, but perhaps employers can take some comfort from the Tribunal’s findings. If you would like to discuss the above in more detail or if you require any employment law advice, please do not hesitate to contact a member of the Employment Law Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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