Mr James Dunbar v Abellio London Limited — 2022

The claimant was employed as a bus driver and was furloughed during the early stages of the COVID-19 pandemic. He did not return to work on 1 July 2020 after the respondent requested his return, explaining concerns about infection risks, his clinically vulnerable wife, his family circumstances, and driver-to-driver transmission in communal areas. The respondent treated the absence as unauthorised and dismissed him summarily for gross misconduct on 24 July 2020.

The tribunal accepted that the pandemic created circumstances of danger and that the claimant genuinely and reasonably believed the danger to be serious and imminent, particularly in light of his prior experience of workplace cleanliness and driver changeover arrangements. It also accepted that he reasonably took the step of requesting extended furlough and proposing a later return date.

The tribunal dismissed the claim because it found that the claimant could reasonably have averted the danger by taking steps such as social distancing, wearing masks and washing hands. It concluded that the reason for dismissal was unauthorised absence, not refusal to return while a danger persisted or a protected step under section 100 of the Employment Rights Act 1996.