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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 Court of Appeal 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:
An employee’s dismissal in these circumstances will be deemed automatically unfair and (unlike standard unfair dismissal) they do not need two years’ continuous service to bring the claim.
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 lock-down in 2020, 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 lock-down 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 and EAT decisions
The Tribunal and EAT dismissed Mr Rodgers’ claim and said that his dismissal was not automatically unfair.
Although, in principle, an employee could reasonably believe that Covid-19 caused serious and imminent circumstances of danger that prevented them from returning to the workplace, in this case the facts did not support that Mr Rodgers held such a reasonable belief about his workplace. (However, he did hold a reasonable belief that Covid-19 caused was a serious and imminent danger in the community at large).
In particular, the employer had implemented various measures to protect against Covid-19 and Mr Rodgers worked in a large workplace where, typically, only five people would be working and this meant that social distancing was not an issue. Further, 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 and, if had felt there was a particular task which put him in danger, he could have refused this.
Also, Mr Rodgers’ refusal to return to the workplace and rather to stay at home indefinitely, were not appropriate steps to protect himself from danger.
Mr Rodgers appealed.
Court of Appeal decision
The Court of Appeal dismissed the appeal. It agreed with the Tribunal and EAT that Mr Rodgers did not hold a reasonable belief that he was at serious and imminent danger in his workplace.
The Court of Appeal also provided some guidance on the correct interpretation of s 100(1)(d) and said that the questions to be decided are:
Implications: This is the first Court of Appeal decision on the application of s100 ERA in the context of the Covid-19 pandemic and is reassuring for employers.
The message is that although there is nothing (in principle) that could stop Covid-19 being considered a ‘serious and imminent danger’ in the workplace, taking steps to manage this risk will reduce the likelihood of successful automatic unfair dismissal claims on health and safety grounds.
If employees do raise health and safety concerns about dangers in their workplace, we recommend that employers work with them to agree a way forward. Although this may not always be enough to avert a section 100 ERA claim, this action by the employer (which should be documented) will provide good grounds upon which to defend it.
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