Key takeaways

• This is the first appellate decision considering the fairness of a dismissal where an employee refused to attend work due to COVID-19 concerns.
• An employee is protected from dismissal where they leave the workforce or take steps to protect themselves where they reasonably believe that there is serious and imminent danger. Interestingly, the EAT considered that the employee's reasonable belief of such danger does not have to arise from the workplace. The circumstances of danger can be attributed to something outside the workplace. However, this was not borne out on the facts of this case.
• The decision is a helpful reminder of the different elements that need to be satisfied under section 100(1)(d) Employment Rights Act (ERA). Even if the employee has the requisite reasonable belief, they will need to show that there were no reasonable steps they could have taken to avert the danger. In this case, the EAT pointed to steps such as wearing face coverings, social distancing, sanitising, and washing hands, as reasonable steps that the employee could have taken both at large and at work, to reduce the risk.

In more detail

Background

Section 100(1)(d) ERA protects an employee from being dismissed in circumstances of danger which they reasonably believe to be serious and imminent and where the employee could not reasonably be expected to avert the danger and they leave (or propose to leave) or, while the danger persists, refuse to return to their place of work or any dangerous part of their workplace.

Facts

Mr. Rodgers was employed as a laser operator. In March 2020, the employer engaged an external specialist to conduct a health and safety workplace risk assessment. Most of the recommendations made - social distancing, sanitization, and staggering start/finish/break times - had already been implemented by the employer. A few days after the first lockdown, Mr. Rodgers emailed his employer advising them that he would have to "stay off work until the lockdown has eased" as he had children with underlying health issues. About a month later, Mr. Rodgers was sent his P45 and he brought a claim for automatic unfair dismissal.

The tribunal dismissed his claim finding that his refusal to attend work was not directly linked to his working conditions but were rather general concerns about the virus at large.

EAT decision

The EAT dismissed his appeal. The EAT held that for section 100(1)(d) to apply, it is not necessary that the circumstances of danger be generated by the workplace itself or that the harm that might be caused by the circumstances of danger will occur at the employee's place of work. However, the employee must have a reasonable belief that the circumstances of danger are serious and imminent, and this was not borne out on the facts of this case. Whilst the EAT accepted that Mr. Rodgers had genuine and significant concerns about the pandemic, there was other behaviour which made it difficult to reconcile with those apparently genuine beliefs, for example, that he had chosen to drive his friend to hospital during a period he was advised to self-isolate, and working at a pub during the lockdown. In any event, even if the reasonable belief element was satisfied, the EAT considered that the tribunal was entitled to find as a fact that Mr. Rodgers could reasonably have taken steps to avoid the dangers, even having regard to his concerns in respect of his children's health. He could have taken steps such as wearing a face covering, social distancing, sanitizing, and washing his hands. These were steps that he could have taken generally and in the workplace, and he had not asserted any particular difficulty about his commute to work that would require him to take additional steps to those available at work.

Rodgers v Leeds Laser Cutting Ltd (EAT)