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On 6 May 2022, the Employment Appeal Tribunal (Case No: EA-2021-000437-VP) held that an employer had fairly dismissed an employee who had failed to attend work during the first national lockdown, over fears of infecting his vulnerable children, confirming the lower court’s decision.

The employee claimed he had been unfairly dismissed, under the meaning of Section 100 of the Employment Rights Act 1996 (ERA), which considers unfair any dismissal of an employee leaving or refusing to return to work in circumstances of reasonably serious and imminent danger. Two days after his employer had implemented health and safety measures against the virus, he informed the latter that he would stay away from work during the lockdown – after which a period of one month lasted before the employer dismissed him, without more communications between the parties.

The Employment Appeal Tribunal held that the employee could not benefit from the statutory protection because (i) his employer had put in place the health protocols recommended by the government, therefore his workplace was not more dangerous than other places; and (ii) the employee had not demonstrated that the danger both at work and outside was reasonably serious and imminent, especially since he had not respected his self-isolation and had worked in a pub during that period. Therefore, the Employment Appeal Tribunal confirmed the lower court’s decision and rejected the appeal.

Full text of the decision available at assets.publishing.service.gov.uk en