Employers will be relieved by a recent Employment Appeal Tribunal (EAT) judgment that found 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. The EAT found in Rodgers v Leeds Laser Cutting Ltd that the claimant could not succeed as he had not shown there were circumstances of danger that he could not reasonably be expected to avert. He could have taken such preventative steps as wearing a mask, social distancing, sanitising and washing his hands.
Background
Generally, employees have the right to bring unfair dismissal claims when they have over two years’ service. There are a few exceptions to this, where employees can claim automatic unfair dismissal when they do not have the requisite length of service for a normal claim. The most common of these exceptions is whistleblowing. Another less commonly seen exception is in section 100 of the Employment Rights Act 1996, which broadly focuses on health and safety cases. One of the sub-sections of this provision has become highly pertinent for employers and employees as a result of COVID-19. Employees who are dismissed in circumstances of danger that they believe is serious and imminent are protected if they (amongst other things) take appropriate steps to protect themselves, or leave (or refuse to return to) the workplace, where they could not reasonably have been expected to avert the danger.
Facts
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 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.
Decision
The employment tribunal dismissed Mr Rodgers’ claim finding that he did not believe there to be a serious and imminent danger in the workplace itself, he was just concerned about the virus in general. LLC had taken reasonable measures to reduce the risk in the workplace and Mr Rodgers had not complained about it or even taken a minor preventative step such as asking for a mask. During the hearing, it became apparent that Mr Rodgers had taken a friend to hospital when he should have been self-isolating and had worked in a pub during the lockdown.
On appeal, the EAT looked at the legal tests in detail. In order to be able claim for leaving (or refusing to return to) the workplace, Mr Rodgers would first have to demonstrate that there were circumstances of danger that he could not reasonably be expected to avert. In this case, the employer had taken steps to avert the danger of COVID-19 in the workplace and, if Mr Rodgers had followed these steps, the danger could have been averted. Therefore, Mr Rodgers did not overcome this first hurdle and his claim failed.
Comment
This is a useful case for employers as it demonstrates that if they took effective steps to comply with the government guidance about workplace safety, which employees could follow to avert the danger of COVID-19 in the workplace, claims of this nature (where an employee leaves or refuses to return to a workplace) are likely to fail.
Frances Rollin