Unfair dismissal due to Covid-19 fears – An Update
In our last newsletter we had an article that was rather optimistically headed “The Last Word On Covid-19”. Whilst the latest wave hasn’t resulted in any changes to government guidance (yet) we are now seeing (as expected by some) Employment Appeal Tribunal decisions filtering through, arising from the impact of Covid-19 in workplaces during the pandemic’s peak.
In May last year we told you about the Employment Tribunal’s decision in Rodgers v Leeds Laser Cutting. In that case, Mr Rodgers was one of approximately five employees working at any one time in a large warehouse-type building. Prior to the first national lockdown, the company had already put some measures in place, which included social distancing, extra cleaning and staggered breaks. Government advice was reiterated to staff. During the first week of lockdown Mr Rodgers sent a text message to his manager saying that he would not be coming to work until lockdown eased, because he was worried about bringing the virus home to his vulnerable child who had sickle cell anaemia. He was dismissed a month later.
As Mr Rodgers didn’t have sufficient service to pursue an ordinary unfair dismissal claim, he brought claims for automatic unfair dismissal under s100(d) and (e) of the Employment Rights Act 1996 arguing that he was dismissed because he refused to return to the workplace in circumstances which he reasonably believed put him in serious and imminent danger. His claim failed. The Tribunal found, on the facts, that Mr Rodgers didn’t believe there was serious and imminent danger in his employer’s workplace (and the Tribunal didn’t accept that Covid-19 of itself presented such a danger irrespective of the steps taken by an employer to mitigate the risk); and it was not reasonable for him to hold his belief given the size of the workplace; the fact that it was easy to socially distance; and in view of the measures that his employer had put in place. Had he followed the safety measures and refused to carry out occasional tasks that overstepped them, he could have avoided danger.
As this was a first instance decision it was not binding on other tribunals. However, Mr Rodgers appealed and his is the first appeal decision to be handed down on the application of section 100(d) and (e) to the Covid-19 pandemic.
Unfortunately for Mr Rodgers, the Employment Appeal Tribunal agreed with the Tribunal.
They said that many of the Tribunal’s factual findings undermined Mr Rodger’s assertions of a belief in serious and imminent danger, both at work and in general, that prevented him from returning to work. Those findings included that: the size of the workplace was a large building with only a few people working in it at any one time; the fact that social distancing was generally possible; masks were available (which Mr Rodgers had not asked for); and that during lockdown Mr Rodgers had driven a friend to the hospital and worked in a pub. The Employment Appeal Tribunal also agreed that Mr Rodgers could have taken reasonable steps to avert the danger by complying with the safety guidelines in place, including socially distancing, washing his hands and wearing a mask. Whilst the Employment Appeal Tribunal judge expressed his sympathy for Mr Rodger’s concerns for his vulnerable children, he said that the Tribunal had not made any legal errors. Although the Covid-19 pandemic could, in principle, form the backdrop to a case under these provisions, that didn’t apply to the facts of this case.
The Employment Appeal Tribunal’s decision largely turned on Mr Rodger’s behaviour. Whilst the Employment Appeal Tribunal stated that the ‘danger’ does not necessarily have to be specific to the workplace – it can be a danger to society ‘at large’, such as a pandemic – it held that to succeed with a claim, it is not sufficient for an employee to be worried about their health or that of their family. The employee must reasonably believe that the serious and imminent danger affects their ability to attend the workplace. Mr Rodgers gave contradictory and confusing evidence which totally undermined his assertions that he was in danger when at work.
In view of the recent spike in Covid-19 cases, this decision is also perhaps a timely reminder of the importance of implementing (and continuing with) safety measures, not only to reduce the risk of ‘danger’ that the virus poses to staff in the workplace, but also the risk of claims.
How can our team of Employment Lawyers help you?
If you would like more information about managing the implications of COVID in the workplace, please contact Marie Allen, Head of Employment, at [email protected] or by phone on 01473 298133
