Section 100(1)(d) of the Employment Rights Act 1996 (ERA) provides that a dismissal will be automatically unfair, if in circumstances of danger which the employee reasonably believed to be ‘serious and imminent’, they took or proposed to take appropriate steps to protect themselves or other persons from the danger.
The recent case of Rodgers v Leeds Laser Cutting Ltd saw the Employment Appeal Tribunal dismiss an appeal by an employee who sought to rely on S100(1)(d) ERA to argue that he was automatically unfairly dismissed after refusing to attend the workplace during the national lockdown due to COVID-19 related health concerns.
Facts of the case
Mr. Rodgers worked for Leeds Laser Cutting Ltd (LLC) as a Laser Operator in a ‘large warehouse-type space’ where, ordinarily, only five people would be working at any given time.
Following the first national lockdown in March 2020 due to the COVID-19 pandemic, Mr Rodgers told his employer that he would not be returning to the workplace until the lockdown had eased. Mr. Rodgers stated that his reasoning for refusing to return to the workplace were his concerns regarding the well-being of his medically vulnerable children who suffered from sickle cell anaemia.
Mr. Rodgers was absent from work for four weeks without permission and consequently his employer dismissed him. As he did not have 2 years’ service at LLC, he was unable to argue ordinary unfair dismissal and alternatively brought a claim for automatic unfair dismissal under s100(d) of the ERA which sets out as follows:
“An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason…for the dismissal is that…in circumstances of danger which the employee reasonably believed to be serious and imminent, he took or proposed to take appropriate steps to protect himself or other persons from the danger.”
The tribunal dismissed Mr. Rodgers’ claim. Although they understood Mr. Rodgers’ concerns relating to COVID-19, they determined that he did not fall within the statutory protection. This was partly due to the tribunal finding that Mr. Rodgers’ action did not appear to align with the claim that he reasonably believed that the there were circumstances of serious and imminent danger. The tribunal also believed that Mr Rodgers’ evidence ‘lacked clarity and had changed over time’.
The tribunal noted a risk assessment of the workplace was carried out by an external professional in March 2020. The assessment provided recommendations to reduce risk and many of the recommendations had already been implemented by LCC.
Mr. Rodgers gave evidence that if all measures described by the respondent were in place then it would make the business as safe as possible from infection. However, he later stated that it would make the workplace no safer than his own home and that he was not sure that any measures taken by LCC would have made him feel safe enough to return to the workplace.
The tribunal also found that Mr. Rodgers did not raise concerns with LCC that could be classed as meaningful concerns that could demonstrate to LCC that he thought there were circumstances of imminent danger at the workplace.
Mr Rodgers was also found to have drove one of his friends to hospital during the period of NHS instructed self-isolation which was arguably misaligned with his expressed COVID-19 related health concerns.
The tribunal concluded that the claim was to be dismissed as although Mr. Rodgers did have concerns about COVID-19 they were general concerns and were not directly attributable to the workplace.
Although the facts of this case resulted in the employee’s claim being dismissed, it is important for employers to be aware that COVID-19 could be deemed as giving rise to circumstances of danger that an employee could reasonably believe to be serious and imminent for the purposes of relying on s100(1) ERA. Therefore, employers should seek expert legal advice in order to avoid claims for automatically unfair dismissal due to COVID-19 related concerns.
If you require advice on unfair dismissals, please contact Farleys’ experienced Employment Law and HR team on 0845 287 0939 or submit your enquiry online.