Is dismissal of an employee who stays away from work due to Covid automatically unfair? asks Joanne Holborn of Baines Wilson LLP.
In this week’s alert we review a recent case which deals with an employee’s decision to stay away from his workplace following the first Covid-19 lockdown due to his concerns over the health and safety of his vulnerable children.
This is the first case to reach the Court of Appeal in relation to the application of section 100(1)(d) (concerning health and safety dismissals) of the Employment Rights Act 1996 related to the pandemic.
Rodgers v Leeds Laser Cutting Ltd
Mr Rodgers worked as a laser operator for Leeds Laser Cutting Ltd (LLC).
Following the first lockdown, on 24 March 2020, LLC announced various measures in order to protect their employees including social distancing and more frequent hand washing. LLC had engaged an external advisor to undertake a risk assessment of the workplace and hold discussions with members of staff to consider what additional safety measures could and should be introduced.
Mr Rodgers could remain socially distant for most of his role and did not raise any concerns about certain times when he could not observe social distancing during his working day. LLC made sure that masks were made available for all employees though Mr Rodgers did not request one.
On 29 March 2020, Mr Rodgers texted his manager to advise that he would be staying away from his workplace until the lockdown had eased as he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anemia). Mr Rodgers obtained a self-isolation certificate from NHS 111 for the period of 28 March 2020 to 3 April 2020, during this time and up until 24 April 2020 there was no communication between LLC and Mr Rodgers.
On 26 April 2020 Mr Rodgers was dismissed due to his unauthorised absence.
Mr Rodgers brought a claim that his dismissal was automatically unfair as he was exercising his rights under s.100(1) of the Employment Rights Act 1996. He did not have sufficient service to bring a claim of ordinary unfair dismissal.
Section 100(1) of the Employment Rights Act 1996 sets out circumstances when an employee shall be regarded as unfairly dismissed for health and safety reasons if they leave work in circumstances of danger which they reasonably believe to be serious and imminent and which they cannot reasonably avoid or if they refuse to return to work.
Mr Rodgers stated at the Employment Tribunal that he was unsure whether any safety measures would have made him feel safe enough to return to work. Evidence was also presented that despite his concerns relating to Covid, during his period of self-isolation he had driven a friend with a broken leg to hospital and later worked at a pub during the pandemic.
Decision
The Tribunal, and on appeal, the Employment Appeal Tribunal and the Court of Appeal all dismissed Mr Rodgers’ claim.
It was held that Mr Rodgers had failed to establish a reasonable belief of a serious and imminent workplace danger. Mr Rodgers’ text to his manager did not mention the workplace and any specific concerns he had, simply that he would not be returning to the workplace until the lockdown had eased. LLC had implemented both social distancing and advised additional hand washing in line with government guidance.
Mr Rodgers had not taken any steps to avert the alleged dangers at his workplace and had not raised any concerns with his line manger prior to leaving work. The Employment Tribunal held that Mr Rodgers’ evidence suggested that he was concerned about Covid generally and the fact that one of his children suffered from sickle cell anemia rather than a direct concern linked to his workplace.
The Court of Appeal stated that the perceived danger in relation to s.100(1) of the Employment Rights Act 1996, must arise in the workplace and an employee must believe that they are subject to the danger as a result of being at work.
The Court of Appeal also noted generally that an employee’s reasonable belief that serious and imminent circumstances of danger (e.g. due to extreme weather conditions) threaten their ability to get to work, but which would not affect them at their workplace, would not be covered by s.100(1).
The Court of Appeal considered that a Tribunal must consider the following questions in such cases:
- Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
- Was that belief reasonable? If so:
- Could they reasonably have averted that danger? If not:
- Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:
- Was that the reason (or principal reason) for the dismissal?
Comment
The Court of Appeal was clear that in respect of similar matters, the circumstances of danger must arise at the workplace and the employee must believe that they are subject to the danger as a result of being at work. A concern about the pandemic or Covid generally is unlikely to succeed at Tribunal. This case sets down an important precedent that employees must be able to evidence that they believe there is a serious and imminent danger at their workplace specifically.
Each case relating to Covid will be fact specific and an argument that Covid automatically creates circumstances of serious and imminent danger which cannot be averted even with safety precautions, is not likely to succeed as it leads to the conclusion that any employee can refuse to work in any circumstances simply by virtue of Covid. This does not necessarily mean that any case arising from circumstances of serious and imminent danger due to Covid will fail.
If you have any questions in relation to unfair dismissal, health and safety related dismissals, require assistance with employment tribunal claims or have any other HR or employment law queries, please contact our employment team on 01228 552600 or 01524 548494.
