Refusing to return to work due to childcare: not a health and safety dismissal
An Engineering Manager who refused to return to work citing childcare commitments was not automatically unfairly dismissed for raising health and safety concerns. The tribunal found his principal reason for refusing was childcare, not Covid-19 fears.
1 min read · Last updated 18 May 2026
Key facts
- The claimant was employed as Engineering Manager from 1 April 2019 until summary dismissal on 2 June 2020.
- On 19 March 2020 the claimant raised health and safety concerns about possible Covid-19 symptoms and self-isolation.
- The claimant refused to return to work on several occasions citing childcare commitments, not health and safety.
- The dismissal letter referenced refusal to return to work and was drafted as early as 26 May 2020.
- The claimant was paid for his notice period and therefore suffered no loss from wrongful dismissal.
Timeline
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Employment started
Claimant began employment as Engineering Manager.
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Work at Bank of Canada site
Claimant worked at Bank of Canada with colleague Russell Pietersen; no masks observed.
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Raised health concerns
Claimant texted Mr Wiltshire that he and Pietersen may have Covid and should self-isolate.
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National lockdown announced
Prime Minister announced lockdown; respondent placed employees on furlough.
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Suggested sanitising spray
Claimant sent WhatsApp suggesting a proprietary spray; not a health and safety disclosure.
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Proposed working while furloughed
Claimant suggested doing a job in his own van to avoid furlough confusion; Mr Wiltshire agreed.
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Refused return to work
Claimant declined to return due to childcare; later sent strong WhatsApp message to Mr Wiltshire.
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Final refusal to return
Claimant refused to work on 9 June citing childcare; no health and safety reason given.
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Summary dismissal
Claimant dismissed by letter for gross misconduct (refusal to return to work).
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Appeal meeting
Appeal meeting held without claimant; adjourned due to discovery of alleged crack pipe.
The legal issue
The tribunal had to decide whether the claimant was automatically unfairly dismissed under s.100 ERA 1996 for raising health and safety concerns about Covid-19, and whether his conduct justified summary dismissal.
The outcome
The tribunal dismissed the claim for automatically unfair dismissal under s.100 ERA 1996. It found that the claimant's principal reason for refusing to return to work was childcare, not health and safety. The claim for wrongful dismissal succeeded but the claimant had already been paid his notice period, so no additional compensation was awarded. All other claims (arrears of pay, unpaid expenses, notice pay, holiday pay) were dismissed.
- No compensation awarded: the claimant suffered no loss from wrongful dismissal as he was paid his notice period.
Lessons & takeaways
- To rely on the automatic unfair dismissal protection for health and safety concerns, the employee must show that the health and safety reason was the principal reason for the dismissal.
- Refusing to return to work due to childcare commitments, without linking it to health and safety, will not attract the s.100 ERA 1996 protection.
- Employees with less than two years' service cannot bring ordinary unfair dismissal claims, so they must carefully establish the specific legal basis for any claim.
- Employers should ensure that dismissal decisions are based on the actual reason for refusal, not on assumptions about the employee's motives.
When childcare, not Covid, is the real reason for refusing work
This case shows the importance of the true reason behind an employee's refusal to return to work. The claimant, an Engineering Manager with just over a year's service, raised early concerns about Covid-19 in March 2020. However, by late May and early June, his refusal to return was explicitly based on childcare commitments, not health and safety. The tribunal carefully examined the timeline and communications, concluding that the health and safety element had faded, and the principal reason for his refusal was childcare.
What the employer could have done differently
The employer dismissed the claimant summarily for gross misconduct after he refused to return to work. While the tribunal found the dismissal was not automatically unfair under health and safety law, the employer could have handled the situation more carefully by exploring flexible working options or temporary childcare solutions. The dismissal letter was drafted before the final refusal, suggesting a predetermined outcome. However, because the claimant had less than two years' service, he could not bring an ordinary unfair dismissal claim, and the automatic claim failed on the facts.
Why this matters for similar claims
This case is a reminder that the automatic unfair dismissal protection for health and safety concerns is not a blanket shield for any refusal to work during the pandemic. Employees must demonstrate that their refusal was motivated by a genuine and reasonable belief in serious and imminent danger, not by other personal circumstances. For employers, the case underscores the need to investigate the true reason for an employee's refusal and to ensure that any dismissal is based on a fair process, even if the employee has limited service.
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