Employee who refused to attend work because of concerns about coronavirus was fairly dismissed
In one of the first cases concerning a covid-related dismissal to be heard by the Employment Appeal Tribunal (EAT), Rodgers v Leeds Laser Cutting, it was ruled that the employer acted fairly in dismissing the employee.
Rodgers started work with Leeds laser Cutting as a laser operator in June 2019. He carried out his work in a large open factory, with usually 5 people in total on the shop floor.
The day after the national lockdown started on 23rd March 2020, the employer sent out a communication to all its employees stating that the business would remain open and Covid safety measures would be observed.
A risk assessment exercise had already been carried out just prior to the lockdown by an external firm of specialists and they had recommended that measures including social distancing, wiping down surfaces and the staggering break times should be put in place.
On 25th March, Rodgers developed a cough, which he claimed was due to dust. He worked normally up until the end of his shift on 27th March, and on 29th March he sent an email to his boss stating that he would not be returning to work until the lockdown had eased. He said this was because he had a vulnerable child at home along with another young baby, and he did not want to put them at risk of catching Covid. He then submitted an NHS self-isolation note covering him for the period from 28th March until 3rd April. His boss replied to the email saying, “ok mate, look after yourselves”.
There was then no further contact between the parties until 24th April, when Rodgers sent a text to his boss saying that he had been told that he had been “sacked for self-isolating”. He also requested that the effective date his employment had ended, and the reason be put in writing to him, along with his P45.
On 24th April, Rodgers received his P45 from the Company and although there had been no other communication, the employer subsequently accepted that this act had confirmed the dismissal.
Rodgers then submitted a claim to the Employment Tribunal stating that he had been automatically unfairly dismissed for refusing to return to the workplace due to a serious and imminent danger, namely Covid-19. However, following a hearing on 29th January 2021, the tribunal dismissed his claim concluding that Rodgers did not believe there was a serious and imminent danger in the workplace, but in the world in general. It also concluded that Leeds Laser Cutting had taken reasonable steps to reduce the risk of infection in the workplace.
Rodgers then appealed this decision questioning whether the tribunal had made an error in concluding that Rodgers’ belief was one of a serious and imminent danger in general rather than in the workplace itself. Following the appeal hearing on 12 April 2022, the EAT dismissed his appeal.
RBA Comment:
In this case the EAT endorsed the tribunal’s view that the employer had taken reasonable steps to try and avoid the transmission of Covid within the workplace and that a belief of danger by an employee would not be enough to create liability on the part of an employer.
Employee found to be victim of harassment because of having to express breast milk in ‘dirty’ toilet
In the case of Mellor v Mirfield Free Grammar School, the claimant was employed as a teacher at the school. In September 2019, Mellor informed the school that she was pregnant. On 16th March 2020, prior to taking her maternity leave, she wrote to the principle with a flexible working request and asked for access to a room to allow her to express when she returned to work.
Mellor’s child was born on 19th April 2020, and her flexible working request was granted on 21st May 2020.
In June 2020, prior to her return to work, Mellor wrote to the school to finalise details for her return and stated that it was important to make the school aware that she would still be breastfeeding when she returns to work and that she may need a room to express in, although she did not plan to feed her child at lunchtimes from September.
In early July 2020, Mellor had a discussion with her line manager about her return to work in September, during which she was told that breastfeeding her baby at school would be impossible as her partner would not be allowed to bring the child onto the school premises due to Covid restrictions.
Mellor informed the tribunal that following her return to work in September 2020, she made numerous requests to her boss to have a room made available to her so that she could express and that she was suffering pain through not being able to do so. The school countered this by saying that there were many empty rooms available throughout the school which Mellor could have used. However, the tribunal dismissed this on the grounds that it was not reasonable to expect Mellor just to wander into an empty room at random, especially during the pandemic.
Following a short period of sickness absence and several other requests from Mellor for a room to be made available for her, no further action was taken by the school. This resulted in her stating that from that point onwards she used the toilets or her car daily, at lunchtime, to express. She went on to say that she wasn’t allowed any time to express, and that she was forced to do it during her lunch break whilst eating her lunch at the same time. She added that she found it disgusting to have to eat her lunch in toilets, which were often dirty.
The tribunal judge summarised the situation by saying that Mellor “genuinely and reasonably had no choice but to use the toilets or her car to express” and that she had made the school aware on numerous occasions, but nowhere was provided. “The alternative was that the claimant would experience an embarrassing leakage in the afternoon,” the judge explained. “It is obvious that this is unacceptable.”
“In our judgement, the conduct did have the effect of creating a degrading or humiliating environment for the claimant,” the judge said. “We are aware of the seriousness of these words, but in our view a woman who has recently given birth should not be subjected to these circumstances solely because she has done so.”
RBA Comment
To avoid the possibility of similar claims, employers need to ensure that suitable facilities are made available at work for new parents. Discussions should take place with breastfeeding employees to determine their needs and suitable arrangements should be put in place to ensure that women who need to express milk can do so in a suitable, clean and private location.