In the latest Judgment to be passed down, following a suite of health and safety related workplace claims arising following the Covid-19 pandemic, the EAT has handed down a notable decision in the recent case of Rodgers v Leeds Laser Cutting [2022] EAT 69, which held that an employee who was dismissed for refusing to attend his workplace due to the risk of Covid-19 to his vulnerable children was not automatically unfairly dismissed under section 100(1)(d) or (e) of the Employment Rights Act 1996 (ERA). This decision may seem surprising at first glance; however, it has provided much needed clarity for employers and employees on the “reasonable belief” requirement under s. 100(1)(d) ERA for health and safety cases relating to the Covid-19 pandemic.
S. 100(1)(d) and (e) ERA makes a dismissal of an employee automatically unfair in circumstances where:
- an employee reasonably believes there is a serious and imminent risk of danger in the workplace which they could not reasonably be expected to avert, so they left (or proposed to leave), or while the danger persisted, they refused to return to the workplace (s. 100(1)(d)); or
- in circumstances of danger which the employee reasonably believes to be serious and imminent, the employee took (or proposed to take) appropriate steps to protect themselves or others from that danger (s. 100(1)(e)).
This provision has become more relevant and widely referenced in the wake of the Covid-19 pandemic where there was a nationally recognised threat to health posed in the workplace.
Facts of the case
Mr Rodgers worked for Leeds Laser Cutting as a laser operator in a large warehouse, which generally only had around five people working there. In March 2020, the company implemented a variety of health and safety measures to enable it to continue operating during the first national lockdown and followed Covid-19 government safety guidance. These measures were discussed with staff and included regular cleaning of workstations, staggered working hours, social distancing, providing face masks and carrying out risk assessments.
After a colleague displayed Covid-19 symptoms at work, Mr Rodgers developed a cough and self-isolated. Two days later, he texted his manager and said he would be staying away from work “until the lockdown had eased” because he was concerned of the risks Covid-19 posed to his vulnerable children, who suffered with sickle-cell anaemia. His manager replied: “okay mate, look after yourself”. There was no contact between Mr Rodgers and his manager after this conversation took place and Mr Rodgers was subsequently dismissed for unclear reasons around a month later.
Mr Rodgers brought a claim for automatic unfair dismissal under s. 100(1)(d) and (e) ERA on the basis he believed the warehouse posed a serious and imminent threat to his family’s health. As he had less than 2 years’ service working at the company, he could not bring a claim for ordinary unfair dismissal. Automatic unfair dismissal for health and safety reasons is a day 1 right; employees don’t require two years’ service to bring such this claim.
The Tribunal of first instance considered whether Mr Rodgers had a “reasonable belief” to satisfy either s.100(1)(d) or s.100(1)(e). Whilst it was accepted that Mr Rodgers had concerns about Covid-19, the Tribunal held he did not have a reasonable belief that there was a serious and imminent danger in his workplace for the purposes of satisfying the legal criteria and rejected his claim. It was concluded that his fear was about Covid-19 in general, and not the conditions in his particular workplace. Mr Rodgers did not raise any concerns about the alleged dangers in the workplace to his manager before he excused himself, and crucially, could not demonstrate why the existing measures implemented were not appropriate or what specifically made him feel unsafe; he had only outlined his intention to remain at home until the lockdown was over.
It was also noted by the Tribunal that Mr Rodgers had breached self-isolation guidelines and had given vague and contradictory evidence; there were cited instances where he had driven a friend to hospital when self-isolating, and undertaken work in a pub during the pandemic. The Tribunal did, however, take issue with how Mr Rodgers was dismissed and commented if he had been able to bring a claim for ordinary unfair dismissal, it is likely that claim may have succeeded; a firm reminder of the importance of adopting a fair procedure and a fair reason when dismissing an employee.
EAT decision
Mr Rodgers appealed and the EAT carefully considered the legal components contained in section 100(1)(d) and (e) of the ERA.
For a claim under s. 100 (1)(d) to succeed, the EAT highlighted the following components had to be established:
- circumstances of danger;
- the employee believed that the circumstances are serious and imminent;
- the belief that the circumstances of danger are serious and imminent was reasonable;
- the employee could not reasonably have been expected to avert the serious and imminent danger;
- the employee left, proposed to leave (while the danger persisted) or refused to return to his place or work; and
- the employee was dismissed because of it.
The EAT accepted the Covid-19 pandemic created at least some circumstances of danger at work which was serious and imminent. However, the relevant components to the appeal were components (2) whether Mr Rodgers believed that the circumstances of danger at work were serious and imminent, (3) whether any such belief was reasonable, and (4) whether he could reasonably have been expected to avert the serious and imminent circumstances of danger at work.
Taking account all of the circumstances of the case, Mr Rodgers’ knowledge and the facilities available to him at the time, the EAT held that the Tribunal had correctly concluded that Mr Rodgers did not reasonably believe there were circumstances of danger within the workplace which were both serious and imminent. The company had taken considerable steps to avert the danger of Covid-19 in the workplace, and as a result, the necessary component in s.100(1)(d) (i.e. that there was danger that could not reasonably be averted) was not engaged and the appeal was dismissed.
Commentary
The decision provides useful clarity on when protection under s. 100(1)(d) ERA applies to health and safety cases relating to Covid-19 and may provide some reassurance to employers if resisting similar claims, where they have taken proactive steps to address health and safety concerns in the workplace and put measures in place to reduce the risk of danger. Employers should update risk assessments, implement control measures, and consult with staff about risks in the workplace and return-to-work plans. This should help to reassure worried staff members that they will be safe at work.
That said, this case turned on its very specific facts and if Mr Rodgers had been able to demonstrate valid health and safety concerns in the workplace which were ignored by the company (for example, if the company did not have social distancing rules, adequate cleaning practices in place or updated risk assessments), the outcome may have been different. The EAT did also provide commentary that Covid-19 could, in theory, give rise to a “danger” that an employee could reasonably believe to be serious and imminent; the case does not rule out Covid-19 as meeting the necessary threshold envisaged by s.100 ERA.
The key takeaway point from this decision is that Covid-19 was not considered as automatically creating circumstances of “serious and imminent danger” for the purposes of bringing a claim for unfair dismissal under s.100 ERA. Otherwise, any employee would be able to rely on merely having Covid-19 concerns to refuse to come into the workplace, which could lead to a disproportionate number of claims being brought. A reasonable belief in serious and imminent danger has to be judged on what concerns the Claimant is alleging, if/how they have raised those concerns and what steps the employer has taken (if any) to combat those concerns – essentially, a case-by-case basis.
Although the Covid-19 pandemic has now eased, employers should always be mindful of the “reasonable belief” argument when considering staff health and safety at work. If employees raise concerns, employers should always be prepared to consider them and to respond adequately. Additionally, employers should have measures in place to ensure that employees with disabilities under the Equality Act 2010 are treated fairly and reasonable adjustments are put in place (which may include homeworking), if appropriate.
If you are looking for employment law advice on a health and safety issue at work, or are a business owner and would like advice and/or assistance with how to manage health and safety in the workplace, please do not hesitate to contact our specialist employment team at employment@curzongreen.co.uk or by telephone.
Please note that all information provided in this article has been provided as general guidance only and all references to the law are in force at the time of writing.