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Returning to the workplace after freedom day – what are your rights?

As the economy begins to open up, we are seeing a steady return to the workplace. This is raising a myriad of unique legal questions. It is apparent that there is considerable uncertainty, amongst both employers and staff, about their rights and obligations.

We’ve seen an increase in the number of enquiries from employee clients regarding safety concerns arising from a return to work. Including whether they can be compelled to wear a facemask and what their rights are if their employer insists they return to the workplace, in circumstances where they believe that doing so will put them at risk.

The Employment Tribunal has considered these questions in two recent decisions. In the case of Rodgers v Leeds Laser Cutting Limited the employee was dismissed because he refused to return to work. In Kubilius v Kent Foods Ltd the employee was dismissed for refusing to wear a facemask.

In both cases the dismissals were held to be lawful.

I have examined these cases below and set out some guidance for employees who might find themselves having to navigate these difficult issues.

Key facts in Rodgers v Leeds Laser Cutting Limited

Mr Rodgers worked as a laser operator in a warehouse. In March 2020, his employer implemented measures to combat the spread of Covid-19. These included adhering to social distancing, wiping down surfaces and staggering arrival times.

After a colleague displayed symptoms, Mr Rodgers informed his employer that he would not return to work until lockdown had eased. He felt that returning to work would put him and his family at risk – he had a 7-month-old baby and a child with sickle cell disease.

A month later, Mr Rodgers was dismissed. He did not have two years’ service, as such, he could not bring a claim for ordinary unfair dismissal. He relied instead on a provision which protects employees from being dismissed on health and safety grounds.

Mr Rodgers argued that he had been automatically unfairly dismissed. For his case to succeed he had to show that his refusal to return to work was based on a ‘reasonable belief’ that doing so would pose a ‘serious and imminent danger’.

The Employment Tribunal’s Decision:

The tribunal concluded that the dismissal was fair. In arriving at its decision, it took into account the following factors:

  • The level of danger in the workplace was no more than that in general society – In fact, Mr Rodgers had agreed that the workplace was “possibly safer than the community at large”. The workplace could not therefore be considered to be dangerous.
  • Mr Rodgers did not reasonably believe there to be a serious and imminent risk. The employer was able to demonstrate that the workplace did not pose a risk, it was able to show it had taken effective measures to prevent the spread of Covid-19.
  • The tribunal found that Mr Rodgers could also have reasonably avoided any risk by following the guidance in place.
  • Mr Rodgers had failed to raise any concerns about the danger with his employer.

Key facts in Kubilius v Kent Foods Ltd

Mr Kubilius worked as a delivery driver. His work required him to drive from his employer’s depot to attend client’s sites.

Kent Foods’ handbook instructed its staff to take all reasonable steps to safeguard their own health and safety and that of others. The handbook required drivers to follow client instruction regarding PPE. Tate & Lyle was a major client of Kent Foods Limited, its rules required face masks to be worn on site. At the time, facemasks were not mandatory – the government guidance was that it was optional to wear a facemask.

Mr Kubilius had repeatedly been asked by a Tate & Lyle employees to wear a mask, but refused to do so. Tate & Lyle reported him to his employer and banned him from its site.

Although Kent Foods tried to persuade Tate & Lyle to allow Mr Kubilius back on site, they refused. Kent Foods was unable to redeploy Mr Kubilus.

Following an investigation, Kent Foods conducted a disciplinary hearing. They concluded that in refusing to wear a face mask, Mr Kubilius had deliberately refused to comply with a reasonable health and safety instruction and also that this breach was aggravated by his lack of remorse throughout the process.

Mr Kubilius was summarily dismissed for gross misconduct.

The Employment Tribunal’s Decision:

The tribunal found the dismissal to be fair. It concluded that the employer had acted reasonably in treating Mr Kubilius’ misconduct as a sufficient reason to dismiss him.

What do these decisions mean for employees?

The decisions in both these cases are only first instance decisions, this means that other tribunals are not bound to follow them. However, they are a useful illustration of the possible outcomes in such cases and also serve as a helpful guide to employees about what steps to take to ensure their conduct is considered reasonable in the circumstances, as such, minimise the possibility of a lawful dismissal.

COVID-19: practical tips for employees returning to the workplace:

A refusal to follow reasonable instructions could result in you being disciplined and even dismissed. Whether your conduct is reasonable will depend on the circumstances, here are some tips to follow to try and ensure your behaviour is likely to be considered ‘reasonable’:

  • Refusing to return to the workplace because of general concerns about Covid-19 will not be sufficient. If you believe your workplace is not safe you should raise your concerns with your employer. When you do, be specific. Try to identify the failings and the additional measures your employer could implement to safeguard you – your concerns should be attributable to the workplace and identify why you feel there is a serious risk?
  • Highlight if your employer has failed to follow government guidance and that this puts you at risk.
  • If you or a family member is particularly vulnerable, inform your employer (in writing) of the particular vulnerabilities/health issues and spell out how the workplace is likely to increase the risk to you/your family. Get medical evidence if possible – a note from your G.P. may suffice.
  • If there are any steps you can take to avoid or minimise the risk, you should do so.
  • If you have legitimate reasons for not wearing a mask, ensure that you communicate this to your employer as well as any third party. Also, explore any alternatives to wearing a face mask.

If you require legal advice from our specialist employment solicitors, please call 0808 252 5231 or request a call back.