Covid-19 related reluctance or refusal to attend the workplace is nothing new, but as we enter a new phase of the pandemic, ‘Living with Covid’, developing case law will be of interest to employers who require or expect workers to attend the workplace on a full or hybrid basis. This blog considers the current guidance on workplace attendance, the recent Employment Appeal Tribunal’s (EAT) decision in Rodgers v Leeds Laser Cutting (a case looking at whether an employee had protection against unfair dismissal when refusing to attend work due to Covid related concerns), and some practical considerations for employers.

The UK government’s ‘Living with Covid’ plan came to full fruition in England on 1 April 2022, with remaining Covid-specific guidance now largely obsolete, and replaced with general public health guidance. This essentially treats Covid like other respiratory illnesses for individuals and business to manage, leaving employers with discretion on how to manage ongoing Covid risks in the workplace, and individuals encouraged to exercise personal responsibility.

Employers are no longer required to consider Covid specifically in their risk assessments, nor have specific Covid mitigation measures in place, although they must continue to comply with their general health and safety obligations. Similarly, ‘work from home if you can’ guidance has been removed, although individuals with symptoms of a respiratory infection (including Covid), and who have a high temperature or do not feel well enough to work, or anyone with a positive Covid test, are advised to try and stay at home, working from home if possible, and to avoid others. Individuals who cannot work from home are advised to discuss options with their employer.

While many employers are adopting a flexible or hybrid approach to home/office working, some attendance at the workplace is likely to be expected or encouraged, and of course not all workers have the option to work from home. With Covid still in circulation, and the list of official symptoms significant expanded in April 2022, there will be a number of workers reluctant to return to the workplace and continuing to adopt a cautious approach.

This is not a new concern for employers, and while the Covid-19 landscape is now very different to two years ago, developing case law will be of interest to employers trying to manage this issue.

Rodgers v Leeds Laser Cutting is one of the first EAT decisions looking at whether a claimant who refused to attend work during the first lockdown (March/April 2020) was automatically unfairly dismissed by his employer. Mr Rodgers did not have the required length of service for an ordinary unfair dismissal claim, but relied on the legislation which protects employees from dismissal where they take steps to protect themselves or others in circumstances where they reasonably believe there was a serious and imminent danger. There are similar protections against suffering a detriment.

Mr Rodgers’ refusal to attend work followed his colleague showing symptoms of Covid, citing a concern for the health and safety of his young children who were medically vulnerable. After a month of refusing to attend work, he was dismissed.

The employment tribunal dismissed the claim, finding that the mere existence of Covid was insufficient to create a serious and imminent danger in the workplace which could not be avoided, and that on the facts, Mr Rodgers’ refusal to attend work was not reasonable. It was relevant that his employer was found to have complied with the ‘working safely’ government guidance in place at the time (including: social distancing; wiping down surfaces; staggering arrival times; and providing personal protective equipment (PPE)), and had carried out a thorough risk assessment. It was also relevant that Mr Rodger’s behaviour was inconsistent with his purported concerns e.g. he was found to have breached self-isolation guidance during his period of refusal to work; failed to raise any specific issues at work; and could not show that there was a greater level of danger in the workplace than outside it.

Mr Rodgers appealed, but the EAT has upheld the tribunal’s decision. Although the EAT concluded that, in principle, an individual could have a reasonable belief of a serious and imminent danger to health and safety arising from circumstances outside of the workplace which prevented him from attending work, the facts did not support that such a reasonable belief was held. The EAT also concluded that there were steps that Mr Rodgers could reasonably have taken to avert his perceived risks both at work and outside it, e.g. wearing a mask, regular sanitising, and maintaining social distancing.

This decision is of course specific to its facts, but will be reassuring for employers especially given the Covid backdrop now is significantly clearer than it was at the relevant time of this claim. That’s not to say employers should be complacent, and although there is no longer an explicit requirement to consider Covid risks in workplace risk assessments, employers who remain mindful of the implications of Covid as part of their general health and safety obligations will be well placed to argue that they are taking all reasonable steps to mitigate risks in the workplace. Previous precautionary measures such as regular cleaning and good ventilation remain good practice, and social distancing and/or other precautionary measures may also be appropriate in some settings.

Employers must also remain mindful of individuals’ specific circumstances – the ‘reasonable belief of serious and imminent danger’ may now be rarely made out based on the present landscape, but as a matter of good employee engagement and practice, any concerns about attendance in the workplace should be dealt with on a case by case basis to explore mutually satisfactory arrangements though meaningful communication. Where arrangements cannot be agreed and dismissal is contemplated, employers should not overlook ordinary unfair dismissal principles. It was not relevant in the Rodger’s case due to his lack of service, but this will not always be the case.