In the case of Rodgers v Leeds Laser Cutting Limited, the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) concluded that an employee dismissed for leaving work and refusing to return because of concerns about Covid 19 was not automatically unfairly dismissed.
Section 100 of the Employment Rights Act 1996 (ERA) makes the dismissal of an employee whose employment is terminated in the following instances automatically unfair:
- In circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he left or proposed to leave or refused to return to his workplace (ERA, S 100(1)(d)); and
- In circumstances of danger that the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or others from the danger (ERA, S 100(1)(e))
This is a Day 1 right and employees don’t need two years’ service to bring such a claim.
What was the background of the case?
Following the start of the first national lockdown, Leeds Laser Cutting Limited carried out a risk assessment and put various safety measures in place to enable it to continue operating. These included staggered starting and finishing times, providing masks, and introducing strict social distancing measures. Two days later, Mr Rodgers told his manager that he would be staying away from work ‘until the lockdown has eased’ because of his concerns about infecting his vulnerable children. There was no contact between Leeds Laser Cutting Limited and Mr Rodgers until his dismissal a month later. As Mr Rodgers did not have the necessary two years’ service to bring an ordinary unfair dismissal claim, he brought a claim of automatic unfair dismissal under ERA, S 100(1)(d) and (e).
What was the Tribunal’s decision?
Even though the Tribunal accepted that Mr Rodgers had significant concerns about Covid 19 generally, this was not enough to bring him within the scope of the statutory protection and his claim was dismissed.
The communication with his manager had not mentioned any workplace dangers and Mr Rodgers could not show that there was, in fact, any such danger. Added to this, Leeds Laser Cutting Limited had implemented the recommended government safety guidance.
The Tribunal also found that despite his concerns about Covid 19, Mr Rodgers had breached self-isolation guidelines to drive a friend to the hospital and had been happy to work in a pub.
Furthermore, Mr Rodgers had not taken any steps to avert the alleged danger and had not raised any concerns with his manager before leaving work.
While Covid 19 could potentially amount to circumstances of serious and imminent danger, to accept Mr Rodgers’ argument that, despite the safety measures in place, his belief that ‘serious and imminent danger which he could not avert’ was reasonable, would be to accept that the very existence of the virus created circumstances of serious and imminent danger. This would lead to any employee being able to rely on S 100 to leave the workplace, simply by virtue of the pandemic, and this is not what the legislation is aimed at.
What was the eventual outcome?
Mr Rodgers’ appeal against the decision was dismissed by the Employment Appeal Tribunal. The parties agreed with the EAT suggestion that leaving or refusing to return to a workplace could only fall within S 100(d) and could not constitute the taking of an appropriate step within S 100(e). The appeal, therefore, only considered the case under S 100(d).
The EAT accepted that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented him from returning to the workplace. However, on the facts of this case, the Tribunal had found that Mr Rodgers did not reasonably believe that there were circumstances of danger that were serious and imminent, either at work or at large.
The EAT stated that on a fair reading of the judgment, the Tribunal had concluded that Mr Rodgers considered his workplace constituted no greater a risk than there was at large. The employer had taken considerable steps to avert the danger of Covid 19 infection in its workplace. Had Mr Rodgers followed those steps, the danger would have been averted. As a result, the key requirement in S 100(1)(d) that there must be a danger that can’t reasonably be averted was not engaged.
Employers who took steps to reduce the risk of infection in the workplace during the pandemic can be reassured that they will be well placed to defend claims presented under S 100, based on an employee’s belief that Covid 19 presented a serious and imminent workplace danger.
It’s worth noting, however, that the EAT did not rule that for a claim to be brought under S 100, the danger had to be generated by the workplace only, so there could still be challenges ahead on this point. Feel free to contact our solicitors if you also need legal advice about exposure to safety risks in your place of work.
Sarah Wilkinson is an employment solicitor with over 20 years of experience in dispute resolution. Sarah also has extensive experience in breach of contract claims and injunctions. Sarah is a member of The Law Society, The SRA and the ELA. To contact Sarah, visit the Contact Us page. For media enquiries: firstname.lastname@example.org