The Court of Appeal ruled recently in the case of Rogers v Leeds Laser Cutting that an employee was not automatically unfairly dismissed when he left the workplace in circumstances he claimed were “of serious and imminent danger” relating to Covid-19.
Mr Rodgers worked for Leeds Laser Cutting (LLC) as a laser operator for less than two years. In March 2020, LLC carried out a Covid-19 risk assessment and put in place measures to protect its staff in the workplace. The workplace was a large, ventilated warehouse with typically only five staff members present at one time, so social distancing was readily achievable.
Mr Rodgers left the workplace on 27 March 2020 and said subsequently he would not be returning until the lockdown has eased as he had a vulnerable child who was shielding. A month later, LLC dismissed Mr Rodgers, having had no contact with him. He brought an automatic unfair dismissal claim against LLC claiming that he had been dismissed for leaving the workplace due to serious and imminent danger.
Generally speaking, an employee must have two years’ service in order to bring a claim for ordinary unfair dismissal. In this case, the claimant was claiming automatic unfair dismissal (which is a day one right). Under s100(d) of the Employment Rights Act 1996, an employee’s dismissal will be deemed automatically unfair where an employee refuses to return to the workplace because he reasonably believes there is serious and imminent danger which he could not reasonably be expected to avert.
In the first instance, Leeds Employment Tribunal ruled that they did not believe there to be a serious and imminent danger in the workplace itself, rather, the claimant had concerns with Covid-19 at large. The Employment Appeal Tribunal agreed and went further to say that in order to rely on s100(d), an employee would need to demonstrate that there were circumstances of danger that he could not reasonably be expected to avert. That did not apply here as reasonable steps were put in place by LLC to reduce the risks presented by Covid-19 (including third party risk assessments, staggered start times and the use of masks).
The Court of Appeal decision
The Court of Appeal upheld the decisions of the tribunal and the EAT. The Court of Appeal reiterated the key questions to consider in a s100(d) claim:
- Did the employee believe that there were circumstances of serious and imminent danger at the workplace?
- Was that belief reasonable?
- Could the employee reasonably have averted that danger?
- Did the employee leave, or propose to leave or refuse to return to the workplace because of the (perceived) serious and imminent danger?
- Was that the employer’s reason or principle reason for the dismissal?
It will come as a relief to employers that the Court of Appeal has approved the approach taken by both the Employment Tribunal and the EAT in relation to this matter. However, it is still important to note that there is nothing (in principle) that could stop Covid-19 being considered a “serious and imminent danger” but such facts would need to be considered by an Employment Tribunal on a case-by-case basis. For now, this recent Court of Appeal judgment continues to reassure employers that, if they took reasonable steps to reduce the risk of Covid-19 in the workplace, they will be in a stronger position to defend claims where employees seek to argue that Covid-19 constituted a “serious and imminent” danger.