Employees that leave the workplace or take other steps to protect themselves from what they reasonably believe to be a serious and imminent danger have protection from dismissal under sections 100(1)(d) and (e) of the Employment Rights Act 1996 (the Act).
Some leading commentators have suggested over the last 12 months that employees could rely on these provisions to justify a refusal to return to work due to concerns that they might contract Covid-19. If it were the case that the mere existence of the virus was sufficient to create a serious and imminent danger, regardless of health and safety measures put in place by the employer, what is to stop swathes of employees refusing to go to work? Naturally, this has left some employers extremely concerned.
In Rodgers v Leeds Laser Cutting, the employee, Mr Rodgers, worked as a laser operator. He had under two years’ service – the normal qualifying period to pursue an unfair dismissal claim. He worked in a large warehouse-type building along with four colleagues. One of his colleagues developed symptoms of Covid-19 and was absent from work. Mr Rodgers developed a cough and he decided to self-isolate at home.
Leeds Laser Cutting had already put in place some measures including social distancing, staggered breaks and extra cleaning. The government’s advice was also reiterated to staff. On 29 March 2020, Mr Rodgers sent a text message to his manager stating that he would not be returning to work until Covid-19 lockdown had eased. He said this was because he was concerned about bringing the virus home and passing it onto his child who had sickle cell anaemia. Leeds Laser Cutting dismissed him 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 Act 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.
The employment tribunal said that his belief should be judged on what he knew at the time. On the facts, the employment tribunal found that Mr Rodgers didn’t believe there was serious and imminent danger in his employer’s workplace – he believed the serious and imminent danger was everywhere. Saying that his evidence about his fear was significantly undermined by the fact that he drove a friend to the hospital the day after he left work.
Furthermore, in the text message to his manager, he didn’t say he would return when the workplace had been made safe, but when the pandemic had eased. It was not reasonable for him to hold his belief given the size of the workplace and the fact that it was easy to socially distance. Had he followed the safety measures and refused to carry out occasional tasks that overstepped them, he could have avoided danger.
It wasn’t reasonable for him to refuse to attend work when it was possible to distance himself from his colleagues. He had also failed to take appropriate steps to inform his employer of his fears of imminent danger. The employment tribunal rejected Mr Rodger’s assertion that Covid-19 of itself presents serious and imminent danger irrespective of the steps taken by an employer to mitigate the risk. A decision to the contrary would inevitably open the door for any employee to ‘down tools’ during the pandemic in reliance on these provisions. However, importantly the judge did say that these provisions can apply to situations arising from Covid-19. Every case must be decided on its facts.
As this is a first instance decision it is not binding on other tribunals but it nevertheless gives a welcome indication of how employment tribunals may construe these provisions in other cases relating to Covid-19. This case demonstrates the importance of implementing safety measures. Not only will this significantly reduce the risk of an employee being exposed to danger but also reduce the risk of tribunal claims.
If you’d like advice on unfair dismissal, please contact Marie Allen, Head of Employment, on 01473 298133 or email [email protected]