After the uncertainty of Covid-19 and what it meant for employers, we are starting to see the Tribunal assessing the fairness of the approach taken in the early stages.
It is too soon to draw any hard and fast rules but there is some recognition of the difficulties faced by all involved at the time.
In the case of Rodgers & Leeds Laser Cutting Limited, the Employment Appeal Tribunal considered whether a dismissal was automatically unfair when it resulted from an employee refusing to return to the workplace because of ‘serious and imminent danger’ if he were to contract Covid-19 and pass to his vulnerable children.
The EAT upheld the Tribunal’s decision to dismiss the claim, accepting that whilst an employee could believe that the workplace posed ‘serious and imminent danger’ in these circumstances, on the evidence, Mr Rodgers did not. They also concluded that if he had, he could have taken steps to avoid such danger by following the safety protocols that were widespread at the time.
Of note was the fact that Mr Rodgers had been willing to engage in other activities that posed a similar risk including driving a friend to the airport and working in a pub.
These cases will continue to provide useful guidance in respect of any future restrictions and health and safety concerns more generally.