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Case update (1): Automatic unfair dismissal and COVID-19

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Summary: Was it fair to dismiss an employee who refused to attend work because he was worried about catching Covid-19 and giving it to his vulnerable children?

Yes, says the EAT in Rodgers v Leeds Laser Cutting (available here) in circumstances (as in this case) where the employee could not reasonably believe that there were serious and imminent circumstances preventing him from returning to the workplace.

Background: Section 100(1) of the Employment Rights Act 1996 (ERA) provides protection from dismissal or detrimental treatment including when:

  • Leaving or refusing to return to the workplace in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert; or
  • Taking appropriate steps to protect himself or others in circumstances of danger which the employee reasonably believed to be serious and imminent.

According to the Employment Appeal Tribunal (EAT) In Oudahar v Esporta Group, whether the employee has taken appropriate steps involves a two stage test:

  1. Was there a danger which the employee reasonably believed was serious and imminent?
  2. Did the employee take appropriate steps to protect himself or others from the danger; or communicate the concerns about the danger to his employer in an appropriate way?

If both parts of the test are met, the Tribunal must decide whether such steps were the reason for dismissal. If so, the dismissal is unfair.

Claims under s100 are for ‘automatic’ unfair dismissal. Unlike ordinary unfair dismissal claims, employees do not need two years’ continuous service.

Facts: The employee, Mr Rodgers, was employed by Leeds Laser Cutting Ltd in a large warehouse-type space (about the size of a football pitch) with a small number of other employees. During lockdown, additional safety measures were introduced at the warehouse, including staggered start and finish times, social distancing and masks.

Mr Rodgers was concerned about infecting his clinically vulnerable child and contacted his manager to say he would not return to work until the lockdown eased.

However, Mr Rodgers did not explain his concerns or engage with his employer about this. Also, his actions were not entirely consistent with his apparent concern about catching Covid-19: he was found to have been working in a pub and had also broken his self-isolation to give a friend a lift in his car.

Mr Rodgers was dismissed for his failure to return to work and he brought a claim for automatic unfair dismissal.


Tribunal decision

The Tribunal dismissed Mr Rodgers’ claim. He had not established that he had a reasonable belief that he was in serious and imminent workplace danger during the time he refused to attend work. Further, his refusal to return to the workplace and rather to stay at home indefinitely, were not appropriate steps to protect himself from danger.

In particular, Mr Rodgers could not show that there had been any workplace danger when he refused to work, as the employer had followed the Government’s safety guidance, implementing precautions such as handwashing and social distancing.

Further, the size of the workplace meant that social distancing was not an issue and if Mr Rodgers had felt there was a particular task which put him in danger, he could have refused this.

Finally, the Tribunal did not accept Mr Rodgers’ argument that Covid-19 created circumstances of serious and imminent workplace danger regardless of the safety precautions implemented by the employer. If the Tribunal were to have accepted this argument, it could lead to any employee claiming that they were entitled to leave their workplace, simply by virtue of the pandemic.

Mr Rodgers appealed.

EAT decision

The EAT agreed with the Tribunal that the dismissal was not automatically unfair.

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, in this case, the facts did not support that Mr Rodgers held such a reasonable belief. In particular, the employer had implemented various measures to protect against Covid-19 and he worked in a large workplace  where, typically, only five people would be working. Even if this was wrong, Mr Rodgers could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands.

Implications: This is the first binding decision on the application of s.100 ERA in the context of the Covid-19 pandemic and is reassuring for employers. The message is that taking steps to ensure that the workplace is safe from Covid-19 will minimise the risk of successful automatic unfair dismissal claims on health and safety grounds.

This is particularly important in this current climate of staff returning to the office. We recommend continuing to follow current government advice on managing the virus at work (which is now broadly to deal with Covid-19 in a similar way to other infectious diseases) and continuing to comply with general health and safety obligations such as updating risk assessments and consulting with staff about risks in the workplace.

Return to Menzies Law Newsletter 2022 Issue 2

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