Before and after school club leader loses Covid-19 safety dismissal claim
A before and after school club leader who refused to attend work during the pandemic claiming serious and imminent danger has lost her unfair dismissal claim. The tribunal found her belief was not reasonable given the school's risk assessments.
1 min read · Last updated 19 May 2026
Case details
- #covid-19
- #health-and-safety
- #section-44
- #section-100
- #constructive-dismissal
- #kids-club
- #risk-assessment
Key facts
- The claimant was employed as a before and after school club leader from 1 September 2019.
- The claimant refused to attend work on 4 January 2021 citing health and safety concerns about Covid-19.
- The respondent complied with government guidance and local authority advice on Covid-19 measures.
- The claimant resigned on 6 May 2021, claiming constructive dismissal.
- The tribunal found the claimant did not have a reasonable belief in serious and imminent danger.
- The tribunal held that the claimant was not constructively dismissed and the claims failed.
Timeline
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Employment started
Claimant began employment as before and after school club leader.
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Risk assessment produced
Headteacher Ms McKeating produced a Covid-19 risk assessment for school reopening, approved by local authority.
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Staff training on risk assessment
Ms McKeating held a training day to go through the risk assessment with staff; claimant attended and raised no concerns.
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Claimant emailed about not returning
Claimant emailed Ms McKeating stating she would follow UNISON advice and not open breakfast club on Monday, but would work from home.
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Claimant did not attend work
Claimant did not return to school; sent a model letter from UNISON citing serious and imminent danger.
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Telephone meeting
Ms McKeating and claimant discussed concerns; claimant said nothing would make her feel safe; Ms McKeating suggested GP or union advice.
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Claimant agreed to return with one bubble
After discussions, claimant agreed to return to work working only with year 4 children.
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Claimant became upset and went home
In a meeting about full reopening, claimant became upset and went home, starting sick leave.
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Claimant resigned
Claimant resigned by email, citing health and safety concerns and lack of support.
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Claim presented to tribunal
Claimant presented her claim to the Employment Tribunal.
The legal issue
The tribunal had to decide whether the claimant was subjected to detriment or unfairly dismissed for raising health and safety concerns under sections 44 and 100 of the Employment Rights Act 1996, specifically whether she reasonably believed there was serious and imminent danger at the workplace.
The outcome
The tribunal dismissed all claims. The complaint against the headteacher was withdrawn. The detriment claims were mostly out of time, and the one in time was not well founded. The unfair dismissal claim under section 100 also failed.
No compensation was awarded as the respondent won.
Lessons & takeaways
- A health and safety belief must be objectively reasonable, not just genuinely held, to qualify for protection under sections 44 and 100.
- Employers who follow official guidance and produce risk assessments are likely to defeat claims that the workplace posed serious and imminent danger.
- Claimants should bring detriment claims within the three-month time limit or risk losing jurisdiction.
- Constructive dismissal requires a fundamental breach of contract; a disagreement over safety measures is unlikely to amount to one if the employer has acted reasonably.
What this case shows in practice
This case illustrates the high bar for employees who refuse to attend work due to health and safety fears. The claimant, a before and after school club leader with two years' service, refused to return to work in January 2021, citing Covid-19 concerns. She relied on a model letter from her union claiming 'serious and imminent danger'. However, the school had produced a detailed risk assessment approved by the local authority, and staff had been trained on it. The claimant had attended that training and raised no concerns at the time.
The tribunal found that her belief was not objectively reasonable. The school had followed government guidance and local authority advice. The claimant's refusal to accept any safety measures, and her statement that 'nothing would make her feel safe', undermined her case. The tribunal also noted that she had worked safely during the first lockdown without complaint.
What the school could have done differently
The school appears to have acted properly: it produced a risk assessment, trained staff, and engaged with the claimant's concerns. However, the case might have been avoided if the school had explored alternative roles or sought an independent health and safety assessment to address the claimant's anxieties. But given the claimant's fixed position, it is unlikely any further steps would have changed the outcome.
Why this result matters
This decision confirms that employees cannot simply rely on a subjective fear of Covid-19 to refuse work. Employers who take reasonable steps to comply with official guidance will be protected. For employees, the case is a reminder that the protection for health and safety refusals requires an objectively reasonable belief in serious and imminent danger. A genuine but unreasonable fear is not enough.
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