The facts
As we reported in our alert last May, which can be found here, Mr Rodgers began working at Leeds Laser Cutting a few months before the outbreak of the Covid-19 pandemic. Leeds Laser Cutting commissioned a workplace risk assessment early on in the pandemic, which was carried out by external professionals and resulted in various recommendations being implemented, including staggered start/finish and break times, extra social distancing and sanitising surfaces. Mr Rodgers could observe social distancing for most of his role and he did not raise concerns about the occasions when he could not. Masks were available for employees, although Mr Rodgers did not ask for one.
Some days after, Mr Rodgers left the workplace and later told his manager, by text, that he would not be returning until the Covid-19 pandemic eased, saying he was afraid of infecting his vulnerable children who had health problems. After a further month with no contact from Mr Rodgers, Leeds Laser Cutting terminated his employment. With under two years’ employment, Mr Rodgers did not have qualifying service to bring an unfair dismissal claim. Instead, he presented a claim of automatically unfair dismissal under sections 100(d) and 100(e) of the Employment Rights Act 1996. These sections deal with dismissals in health and safety cases in circumstances of serious and imminent danger, for which there is no minimum service criterion. (Essentially Mr Rodgers’ claim was he had been dismissed for refusing to return to the workplace due to a serious and imminent danger, namely the Coronavirus).
The employment tribunal dismissed the claim, finding that Leeds Laser Cutting had taken reasonable measures to avert the workplace dangers associated with Covid-19 infection at the time, and that Mr Rodgers’ evidence was both confusing and contradictory. The tribunal found that Mr Rodgers did not believe that there were circumstances of serious and imminent danger at his workplace nor, under the circumstances, would such a belief have been reasonable.
Mr Rodgers appealed to the EAT, which dismissed his appeal.
Mr Rodgers appealed to the Court of Appeal which also dismissed his appeal and upheld the employment tribunal’s decision.
Mr Rodgers argued in the Court of Appeal, among other things, that the Employment Judge erred by construing the legislation as being concerned only with dangers that were specific to the workplace, in the sense that they only arose there. Mr Rodgers argued that the perception of danger could also relate to the journey to work. The Court of Appeal did not accept this, holding that the perceived danger must arise at the workplace.
What does this mean for employers?
The Court of Appeal’s decision is useful for employers, making it clear that the circumstances of danger covered by section 100 of the Employment Rights Act 1996 must arise at the employee's workplace and that the employee must believe that they are subject to the danger because they are in the workplace. Therefore, while danger "at large", such as a pandemic, can give rise to circumstances of danger, for the protections set out in this legislation to apply, an employee must reasonably believe there to be a serious and imminent danger at their workplace.
It is important to note that this case does not show that employees cannot be successful in claiming automatically unfair dismissal in relation to serious and imminent danger in the workplace in the context of Covid-19. On the facts of this case, however, Mr Rodgers was unsuccessful.
