Decision in Covid-related unfair dismissal claim

We are now starting to see decisions from the Employment Tribunals relating to claims that were made at the start of the coronavirus pandemic. In one such matter, an Employment Tribunal was recently asked to consider whether an employee was automatically unfairly dismissed because he had refused to attend his workplace due to his fear of catching coronavirus and passing it on to his children. This was a claim for ‘automatic’ unfair dismissal for health and safety reasons, meaning that if the employee succeeded then there would be no limit on the compensation that the Tribunal could award him.

The case

In Rodgers v Leeds Laser Cutting Limited, Mr Rodgers was employed as a laser operator in a large warehouse-type space. There were typically five people working on the shop floor in March 2020. Following the announcement of the first national lockdown, Mr Rodgers’ employer informed their employees that the business was putting measures in place to allow everyone to work as normal. There were already some measures in place to protect against coronavirus, and the need for social distancing was by that time common knowledge. A risk assessment was carried out by an external professional in mid-March 2020 which recommended social distancing and wiping down surfaces, as well as staggering break and lunch times. The employer also held conversations with its staff members about handwashing and social distancing.

On 29 March 2020 there was a text exchange between Mr Rodgers and his line manager in which Mr Rodgers said he had no alternative but to stay off work until the lockdown eased. He pointed out that he had one child at high risk due to sickle-cell anaemia and also a 7 month old baby. He then obtained a self-isolation note for the period 28 March 2020 to 3 April 2020. Mr Rodgers was dismissed in April 2020.

As he did not have two years’ continuous service with his employer, Mr Rodgers could not bring a claim for ‘normal’ unfair dismissal. Instead, he brought a claim for automatic unfair dismissal under sections 100(1)(d) and (e) Employment Rights Act 1996, both of which have no qualifying minimum period of service.

Under these sections an employee is unfairly dismissed if:

“In circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, they left (or proposed to leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of their place of work, or

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.”

Reasonable belief of serious and imminent danger

The Employment Tribunal found that Mr Rodgers could not have reasonably believed that there were circumstances of serious and imminent danger. He worked in a large space with a small number of colleagues and his employer had put in place measures to protect their employees in line with the Government guidance at the time. It also transpired that he had driven a friend to hospital on 30 March 2020 despite having been told to self-isolate. When he sent the text message to his Line Manager about not coming into work he had not expressed any concerns about health and safety at the workplace.

Could he reasonably have been expected to avert the danger?

Yes, said the Tribunal. Mr Rodgers could reasonably have been expected to avert any dangers by abiding by the guidance at that time and by using additional personal protective equipment if he wished to do so.

Did he take reasonable steps to protect himself or others (his children) from danger?

The Tribunal was not satisfied that it was appropriate for Mr Rodgers to absent himself from work entirely when it was not hard to socially distance at the workplace. He did not take appropriate steps to communicate concerns about his workplace to his employer who therefore could not have known that he was absenting himself from work due to any concern of serious and imminent danger.

Conclusion

It is important to remember that this decision was based on the particular facts of the case and was made at Employment Tribunal level, therefore it is not binding on other Tribunals. However, it highlights that if an employer has followed guidance on keeping their workplace “Covid secure” then this may well minimise the risks if an employee brings a claim for automatically unfair dismissal. If you are an employer concerned about issues being raised by your employees as workplaces continue to re-open, then we can assist you.