The claimant started working for the respondent on 14th June 2019 as a laser operator.  He did not have a written contract of employment although references were made to the employee handbook which was available online.   However, the Tribunal found that the claimant had not been ‘added’ for the purpose of viewing this handbook.

An issue arose in March 2020 when on the 16th March one of the claimant’s colleagues displayed Covid-19 symptoms and was sent home to self-isolate.  The claimant later stated that he had worked with the colleague (albeit on an erroneous date) and that he had subsequently developed similar symptoms.   The company’s approach to the first national lockdown was to remain open and that health and safety steps would be put in place.  This involved a risk assessment being carried out by an external professional which led to recommendations relating to social distancing, wiping down surfaces and staggering start/finish times.  The Tribunal found that due to the size of the respondent’s work that it was possible to have sufficient social distancing in place.

The measures were reiterated to the employees to ensure compliance.  Following the 27th March 2020 the claimant messaged his line manager stating that he has no alternative but to stay off work until lockdown eased.  This was on the basis of having a child at high risk as well as a young baby in the house.  This position continued with no contact between the claimant and respondent until 24th April when the claimant sent a text message to his line manager to say that he had been told he was sacked for self-isolating.  The Tribunal found that the claimant’s reason for self-isolating was not in relation to the working conditions at the respondent, rather his concerns were about Covid-19 generally.  The Tribunal also noted that the claimant had not raised any concerns to managerial staff to the extent that he felt unsafe in the workplace.

The first difficulty for the claimant was that he did not have two years’ continuous service for the protection from being unfairly dismissed (one year required in Northern Ireland).   Therefore, he claimed it was automatically unfair on the basis that he was working in circumstances which he reasonable believed to have the effect of serious and imminent danger.  The respondent relied upon Oudahar v Esporta Group (2011) which outlined that to rely upon this automatically unfair reason there is an onus on a claimant to take appropriate steps such as communicating the danger to the employer.

The difficulty the claimant had was that there was evidence that he had transported his friend to hospital when he was in a self-isolation period.   Accordingly, the Tribunal found that there was not any objectively reasonable belief that there was a danger in the workplace which was clear when the claimant did not cite any risks in the workplace when he indicated that he was going off to self-isolate. Additionally, the large size of the respondent’s workplace and small number of employees allowed for social distancing to be easily implemented. As a result, the claimant’s case was dismissed.

Practical Lessons

It is likely that many more of these cases will come before the Tribunal.  The decision here demonstrates that the court will still require that there is an objectively reasonable belief that there was a serious and imminent danger related to the workplace which had to be averted.   In looking at this objectively, it goes to the heart of the claimant’s conduct and the reasons he had outlined at the time when he had decided to go off.  A big factor in these cases is likely to be whether the claimant had outlined any difficulties or dangers within the workplace rather than general points made relating to Covid-19.
https://www.gov.uk/employment-tribunal-decisions/mr-d-rodgers-v-leeds-laser-cutting-ltd-1803829-slash-2020