In the case of Rodgers v Leeds Laser Cutting Ltd, the Court of Appeal has decided that an employee had not been automatically unfairly dismissed for refusing to come to work during the COVID-19 pandemic. This is a notable decision as it is the first post-pandemic Court of Appeal claim considering s100(1)(d) of the Employment Rights Act (1996) (the “ERA”). It is also a helpful decision for employers; finding that employees must reasonably believe that their actual workplace poses a serious or imminent danger for the special protections against dismissal in s100 to apply. Travel to and from work, and the risk of infection during a commute, will not be enough for an employee to show such danger.
The facts of this claim are likely to be similar to those faced by many employers during lockdown and the pandemic. The employer in the case was able to remain open during lockdown and had hired a third party to ensure that sufficient procedures were put in place to maintain safe working practices. The Claimant was unable to work from home due to the nature of his role. Despite the measures put in place at his workplace, the Claimant stated that he would not be attending work as he was concerned for the health of his vulnerable children. Following a period of leave in accordance with NHS 111 guidance, the Respondent heard nothing further from the Claimant for a number of weeks and therefore dismissed him.
The Claimant, sought to argue that his dismissal was unfair under s100(1)(d) ERA, which states:
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
(d) 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, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.
By way of reminder, an employee does not need to have two years of service to bring this claim.
The claim was rejected by both the Employment Tribunal and the Employment Appeal Tribunal. Both courts found that while the pandemic could give rise to instances of serious and imminent danger, it did not in this case. Instead, the Claimant’s decision to stay away from his workplace related to his general fears regarding the pandemic and not to his concerns about the workplace itself. The Claimant appealed to the Court of Appeal, which dismissed the claim.
The Court set out a five-stage test which Tribunals should adopt in cases where it is claimed that s100(1) ERA applies:
- Did the employee believe that there were circumstances of serious and imminent danger at the workplace?
- Was that belief reasonable?
- Could they have reasonably averted that danger?
- Did they leave, or propose to leave or refuse to return to the workplace because of the (perceived) serious and imminent danger?
- Was that the reason (or the principal reason) for the dismissal?
The Court’s finding that the legislation is designed to cover dangers relating to use of equipment, the actual premises itself or systems in place at work rather than a more general risk of infection will be helpful to employers. The findings in this case show a narrow application of s100(1) ERA, however, as ever, each application will depend on the facts of the case. Here, the measures which the Respondent had put in place to allow safe working was looked on favourably by the Court and the Claimant’s own actions during the pandemic (refusing to wear a mask and working part time in a pub) did little to assist his argument.