Automatic unfair dismissal due to Covid related concerns: The Employment Appeal Tribunal has their say

Eloise Brennan

Eloise Brennan

Solicitor

Rodgers v Leeds Laser Cutting Ltd: an employee was found not to have been automatically unfairly dismissed for refusing to attend work over concerns about the risk of Covid-19 to his vulnerable children.


The recent judgement of Rodgers v Leeds Laser Cutting Ltd is important as it is the first decision by an Employment Appeal Tribunal concerning automatic unfair dismissal in relation to health and safety concerns over Covid-19.  Up until now any cases on this area have only been at an Employment Tribunal level and therefore non-binding.

The case provides a helpful reminder to employers of the importance in taking preventative steps to reduce the risks of Covid-19 and ensuring that sturdy measures are put in place. It also highlights how employment tribunals consider each case on a highly fact specific basis, including whether an employee’s actions are consistent with them believing they were at serious and imminent risk of danger.

Facts of the case

Mr Rodgers had worked as a laser operator for his employer since June 2019. The workplace was a large warehouse-type space and there were usually only five people working there. Following the announcement of the first national lockdown in March 2020, the employer put measures in place to protect the workforce against Covid-19 and conducted a risk assessment in Mid-March 2020. The majority of the measures identified in the risk assessment had already been put in place by the employer prior to the assessment and conversations were had with staff about the importance of social distancing and handwashing.

Mr Rodgers left work on 27 March 2020 and emailed his employer on 29 March 2020 to say that he would not be returning to the workplace until lockdown eased as he had concerns about Covid-19 and the proposed risks to his vulnerable children who were shielding. He was subsequently dismissed and brought a health and safety claim for automatic unfair dismissal under s100(d) and (e) of the Employment Rights Act 1996. Mr Rogers claimed he had been dismissed for refusing to attend the workplace due to Covid-19 which he saw as a serious and imminent danger.

Employment Tribunal  

The Employment Tribunal found that although Mr Rodgers had general concerns about Covid-19 these concerns were not directly attributable to the workplace and the actions taken by Mr Rodgers did not support his argument that there were circumstances of danger which he believed were serious and imminent. The Employment Tribunal also found inconsistencies in the evidence given by Mr Rodgers.  In reaching their decision, the Employment Tribunal took the following factors into account:
  • The working environment was large and few people worked in it
  • Mr Rodgers drove a friend to hospital when he was meant to be self-isolating
  • Mr Rodgers had worked in a pub for a period of lockdown
  • Masks were made available by Mr Rodgers’ employer, yet Mr Rodgers had not asked for a mask
  • Mr Rodgers had remained at work from the date of the announcement of lockdown on 24 March 2020 until he left work at his normal time on 27 March 2020
  • Mr Rodgers could generally maintain social distance at work

Employment Appeal Tribunal

Mr Rodgers appealed the decision to the Employment Appeal Tribunal.

In relation to Mr Rodgers’ claim under section 100(1)(e) of Employment Rights Act 1996 (where the employee takes steps to protect themselves (or others) from the danger) the Employment Appeal Tribunal held that refusing to return to the workplace did not constitute taking an appropriate step to avert danger.  Therefore, the Employment Appeal Tribunal only considered Mr Rodgers claim under s100(1)(d) which was whether he’d been automatically unfairly dismissed due to a refusal to return to the workforce.

The Employment Appeal Tribunal found that it was not necessary for the danger to be generated by the workplace itself. The Employment Appeal Tribunal found that the Employment Tribunal had accepted that the Covid-19 pandemic could give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent, but that this case failed on the facts.

In light of the factors outlined in the bullet points above, it was reasonable for the Employment Tribunal to conclude that Mr Rodgers actions did not demonstrate that he had a genuine belief that he was in serious and imminent danger. The Employment Appeal Tribunal also found that even if the Employment Tribunal had been wrong to find that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious and imminent, it was entitled to find that Mr Rodgers could have taken steps to avoid the dangers, even having regard to his concerns about the health of his children, both at the workplace and at large.

Summary

Although the Employment Appeal Tribunal found in favour of the employer, employers should still remain cautious where employees express health and safety concerns in relation to Covid-19.. Tribunals will consider on a case by case basis what steps an employer has taken to mitigate workplace risks, as well as looking at the behaviour of the employee i.e. whether this fits with their genuine belief that they are in imminent or serious danger and what steps an employee has taken to reduce any danger.

Employers should have policies in place to deal with any Covid-19 outbreaks in the workplace and ensure that any Covid-19 policies are continuingly reviewed in light of any new government guidance.

The full judgement can be read here Rodgers v Leeds Laser Cutting Ltd.


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