Guide for Employers – Long Covid and Health & Safety Concerns

In light of this decision, employers should carefully consider each employee’s symptoms on its own facts, especially when dealing with the relatively new concept of long covid which can involve complex symptoms. This will ensure that any reasonable adjustments can be made and the employee is supported in the workplace. Otherwise, employers could fall foul of the Equality Act 2010 and disability discrimination legislation.

If an employee states that they have long Covid, employers should treat this as they would any other health condition. They should ensure they take any relevant medical evidence into account when making decisions. Invisible illnesses are, by definition, harder for an employer to identify. This makes open communication with the employee crucial to help them remain in work and to do so comfortably and productively.

Where possible, employers should continue to embrace flexible working. Flexibility means different things to different people and can extend beyond hybrid working to include, for example, allowing an employee to shift their working hours forward if their symptoms are more severe later in the day, or back if mornings are particularly tough.

Facilitating flexible working arrangements for employees with health struggles will often help to avoid long-term absences and other issues arising. Simply being mindful and supportive, and showing that you are willing to consider creative solutions, can make a huge difference to your staff.

Health and Safety Concerns – COVID

Was a tribunal entitled to hold that an employee who failed to attend work during the Covid pandemic was not automatically unfairly dismissed for doing so in the face of serious and imminent danger?

Yes, held the Court of Appeal in Rodgers v Leeds Laser Cutting.

An employee who lost his job for refusing to work during the pandemic, claiming his workplace posed a ‘serious and imminent’ danger, has lost his case at the Court of Appeal. This is the first Covid-19 related employment case to be heard in the Court of Appeal.

The Claimant, Mr Rodgers worked in a large warehouse which was described as about the size of half a football pitch. There were usually only 5 others working in the area. Mr Rodgers developed a cough on Wednesday 25 March 2020 (which he attributed it to dust at work) and worked for the next two full shifts until Friday 27 March 2020. Mr Rodgers asserted that he had not returned to his place of work because “he reasonably believed there were circumstances of danger that were serious and imminent arising out of the Coronavirus pandemic”. He indicated that he had a vulnerable child at high risk due a health condition and a 7 month old baby that he wanted to protect from the virus.

The employer had implemented a number of Covid secure measures under the advice of an external professional. These included the introduction of social distancing, the requirement for regular hand washing and the provision of a mask dispenser near the entrance. Mr Rodgers was subsequently dismissed for failing to attend work.

In his case before the ET, which was heard in 2021, Rodgers alleged that his dismissal was automatically unfair as he had exercised his legal right to leave his workplace under section 100 of the Employment Rights Act 1996. The legislation protects employees from unfair dismissal if they refuse to return to work where they believe there is a “serious and imminent” to their health and safety. The ET decided this did not account to automatic unfair dismissal.

Mr Rodgers appealed this decision at the Employment Appeal Tribunal (‘EAT’). The tribunal’s ruling was upheld by the EAT, which agreed that the claimant did not hold a reasonable belief that there were serious and imminent dangers that prevented him from returning to work. In its judgment handed down on 20 December 2022, the Court of Appeal dismissed Rodgers’ claim that the tribunal judge had erroneously concluded that because the claimant’s belief was one of a serious and imminent danger. Mr Rodgers then took this matter to the Court of Appeal to challenge the EAT’s decision.

The Court of Appeal found that he had failed to raise specific concerns about the workplace – instead, his concerns related to the pandemic as a whole. His actions outside of the workplace (not wearing a facemask, leaving his home during self-isolation, and working in a pub during lockdown) also did not support his argument. Given that the company had implemented various safety measures to prevent transmission of the virus and the vast size of the building which made it easier to socially distance, Mr Rodgers’ lost his claim for automatic unfair dismissal.

What are the implications of employees refusing the vaccine jab?

Barchester Healthcare, the second largest care home provider in the UK, implemented a “no jab, no job” policy in 2021 after seeing around 10% of its residents and several staff members die following Covid-19 infection in 2020.

Several former employees, including care assistants, laundry staff and a nurse, lodged claims for unfair dismissal and religious or belief discrimination against the company after they lost their jobs for refusing to get the vaccine.

Some claimants argued that they did not trust the vaccine, as long-term effects had not yet been published. However, the judge noted that the vaccine had approval from the government’s Medicines and Healthcare Regulatory Agency.

One of the claimant’s refused to take the vaccine as she believed God would protect her and that her belief constituted a philosophical belief under the Equality Act 2010, while another, Miss Chadwick, claimed she had a philosophical belief of “my body, my choice”.

However, Barchester Healthcare argued that the introduction of its vaccine policy was to:

…reduce the risk of spread of Covid infection in its homes and, therefore, death and serious illness amongst primarily its residents, but also its staff and any visitors.

They also outlined to the Tribunal that their patients faced a higher risk of becoming ill from Covid because of their age and health.

The tribunal judge was satisfied that the requirement that the company’s employees were vaccinated was a legitimate aim, namely the minimising the risk of death and serious illness amongst residents and staff’ and such a move was ‘necessary in a democratic society’. The tribunal judge recognised that the reason for sacking the workers, while “unusual”, was “genuine and substantial” and said the company “believed its policy of (subject to medical exemption) only employing vaccinated care home staff would save lives”.