Bus driver dismissed after refusing to return from furlough due to COVID-19 fears: claim fails
A bus driver with 5 months' service was dismissed for gross misconduct after refusing to return to work during the pandemic. The tribunal rejected his claim of automatic unfair dismissal, ruling he could have reasonably averted the danger by following government guidelines.
1 min read · Last updated 18 May 2026
Case details
- #covid-19
- #furlough
- #clinically-vulnerable-family
- #gross-misconduct
- #unauthorised-absence
Key facts
- The claimant was employed as a bus driver from 8 November 2019 until dismissal on 24 July 2020.
- The claimant's wife was clinically vulnerable, and he requested furlough on 9 March 2020.
- The respondent requested the claimant return to work on 1 July 2020, but he refused due to COVID-19 concerns.
- The claimant was dismissed for gross misconduct due to unauthorised absence.
- The tribunal found the claimant could have reasonably averted the danger by following government guidelines.
Timeline
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Employment started
Claimant commenced employment as a bus driver.
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Furlough request
Claimant requested furlough due to wife's clinical vulnerability.
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Respondent's return-to-work letter
Respondent wrote to claimant advising of COVID-secure measures and requesting return to work.
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Claimant's response
Claimant replied expressing concerns about workplace safety and family risk.
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Claimant's final request
Claimant requested furlough extension until after second wave.
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Failure to return to work
Claimant did not attend work due to COVID-19 concerns.
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Disciplinary hearing and dismissal
Claimant was dismissed for gross misconduct (unauthorised absence) after a hearing in his absence.
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Appeal hearing
Appeal hearing held remotely; dismissal upheld.
The legal issue
The tribunal had to decide whether the claimant's dismissal was automatically unfair under health and safety law because he refused to return to work due to a reasonable belief in serious and imminent danger from COVID-19.
The outcome
The tribunal dismissed the claim, ruling that the dismissal was not automatically unfair. The key reason was that the claimant could have reasonably averted the danger by following government guidelines, such as social distancing and hygiene measures, which the employer had implemented. As a result, his refusal to return to work was not protected under section 100(1)(d) or (e) of the Employment Rights Act 1996.
No compensation was awarded as the claim failed.
Lessons & takeaways
- Employees with less than two years' service can only claim automatic unfair dismissal for specific reasons, such as health and safety, but the burden is on them to prove the reason for dismissal.
- A belief in danger must be both genuine and reasonable; if the employer has taken adequate safety measures, refusing to return may not be protected.
- Following government guidelines and cooperating with employer's safety measures can help avoid a finding that the danger could have been averted.
What this case shows in practice
This case illustrates the limits of health and safety protection for employees during the pandemic. The bus driver, who had only five months' service, was dismissed after refusing to return from furlough because he feared for his clinically vulnerable wife. The tribunal accepted that his concerns were genuine, but found that his belief in serious and imminent danger was not reasonable because the employer had implemented COVID-secure measures and government guidance provided ways to reduce risk.
The claimant argued that communal areas and toilet facilities were unsafe, but the employer had carried out risk assessments and issued guidelines on social distancing. The tribunal noted that the claimant could have averted the danger by following those guidelines, and that his refusal to return was therefore not protected.
What the employer did right
Abellio London Ltd took several steps that helped its case: it wrote to the claimant detailing the safety measures, it held a disciplinary hearing (even though the claimant did not attend), and it followed its procedures. The tribunal found that the dismissal was for unauthorised absence, not for a health and safety reason.
Why the result matters
For employees considering a similar claim, this case is a reminder that the automatic unfair dismissal protection under section 100 is narrow. It requires a reasonable belief in serious and imminent danger that cannot be averted. If an employer has taken reasonable steps to address risks, the tribunal is likely to find that the employee could have averted the danger by cooperating with those measures.
The case also highlights the importance of service length: with less than two years, the claimant could not bring an ordinary unfair dismissal claim, so the entire case rested on the automatic unfair dismissal ground, which he failed to establish.
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