Last year we highlighted a case which involved the dismissal of an employee who refused to return to work during the covid-19 pandemic – The original article
Although as we move on from the pandemic the same situation will unlikely arise again, as we explain below, the case raises some interesting points about when it will be fair to dismiss an employee who refuses to attend work on health and safety grounds. Since we reported on the case and the decision of the Employment Appeal Tribunal, as we explain below, the case has developed further with the matter going to the Court of Appeal.
Rodgers v Leeds Laser Cutting Ltd
Mr Rodgers worked as a laser operator for Leeds Laser Cutting Ltd. On 24 March 2020, the day after the first Covid-19 lockdown, employees were advised that measures were being put in place to protect them from Covid-19, and that they should work as normally as possible. Measures included social distancing and handwashing. Mr Rodgers could observe social distancing for most of his role and did not raise any concerns about the occasions when he could not.
On 29 March 2020, Mr Rodgers text his manager saying that he would be staying away from his workplace “until the lockdown has eased”. He stated that he was worried about infecting his child who had sickle-cell anaemia who would be extremely poorly if he got the virus, as well as a seven-month-old baby who could potentially have underlying health problems about which he was not yet aware. Hr made no mention about specific concerns about his workplace. He obtained a self-isolation certificate from NHS 111 for the period 28 March – 3 April 2020. There was no further contact between Mr Rodgers and his employer. He was dismissed on 26 April 2020 because he had been absent without leave or explanation.
Mr Rodgers did not have 2 years’ service so he could not bring a claim for ordinary unfair dismissal. Instead, he brought a claim for automatic unfair dismissal alleging that his dismissal was automatically unfair because he had exercised his rights under Section 100 (1)(d) of the Employment Rights Act 1996 (ERA). This provides that an employee is unfairly dismissed if the reason for their dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, and which they could not reasonably have been expected to avert, the employee left or refused to return to their place of work.
Employment Tribunal decision
At first instance the Employment Tribunal dismissed the claim. It accepted that Mr Rodgers had concerns about Covid-19 generally. However, he had not established a reasonable belief in a serious and imminent workplace danger. He had not taken any steps to try and avert the danger, nor had he raised any concerns with his manager. In addition, Mr Rodgers said in evidence that he had worked in a pub later in the pandemic.
Mr Rodgers appealed to the EAT who dismissed the appeal. Mr Rodgers appealed.
Court of Appeal decision
The matter went to the Court of Appeal who decided that the Employment Tribunal was correct and his dismissal was fair. It was held that there were no circumstances of danger that Mr Rodgers reasonably believed to be serious and imminent, at work or at large, that he could not otherwise reasonably avert. Although he did believe that there was a serious and imminent danger at large, he did not believe that there was such a danger specific to the workplace. This final finding what crucial to the downfall of his claim.
Comment
Employers can take some comfort from this case which shows that employers who are able to demonstrate a considered and measured approach to Covid-19 (or any other kind of health risk) are well placed to defend claims presented under section 100(1) of the ERA. It also highlights that employee’s concerns about health and safety have to have some relation to the workplace to gain the protection of Section 100 (1)(d) ERA 1996.