The Employment Appeal Tribunal (EAT) has upheld a tribunal decision that an employee had not been automatically unfairly dismissed under section 100 of the Employment Rights Act 1996 for leaving work and refusing to return at the start of the first COVID-19 lockdown.
The employee did not attend the workplace as he claimed he was concerned about catching COVID-19 and passing it on to one of his children. His child had underlying health conditions.
The employer was following the government guidance in relation to social distancing, including handwashing and face masks being made available. Furthermore, the building in which the employee worked was large with few employees. The employee had not raised any specific workplace concerns to his employer; the tribunal found the employee did not have a reasonable belief that there was a serious and imminent danger which would prevent him from returning to work. The tribunal also found there were steps the employee could have reasonably taken to avert any dangers.
It is important to note that the tribunal accepts that COVID-19 is capable of “leading to circumstances of danger” that were “serious and imminent” but this case fails based on its facts.