Implementing and enforcing Covid-19 safety measures in an unfair dismissal context

COVID-19 has brought about issues for both employers and employees in terms of staff safety.

The Pandemic saw a number of employees being dismissed for refusing to return to work, which ultimately resulted in employment tribunal claims for unfair dismissal.

We are now seeing these cases come before the Employment Appeal Tribunal (EAT).

Stacey Cox, director and head of employment law and HR services at Wake Smith Solicitors looks at the case of Rodgers v Leeds Laser Cutting Ltd [2022] EAT 69 where the EAT agreed with the tribunal that a dismissal for refusing to return to work because of Covid-19 related concerns, was not considered to be automatically unfair.

• The case
• The legal details
• What this means for employers and employees

The case

The EAT recently upheld a Tribunal’s ruling that an employee who left, and then refused to attend work during the first national lockdown because he was concerned about Covid-19, was fairly dismissed by his employer.

Leeds Laser Cutting employee Mr Rodgers had become increasingly concerned about Covid-19 and the risk it posed to his vulnerable children during the first national lockdown in March 2020. He contacted his manager to say he would not be attending the workplace until the lockdown had eased.

A month later, he was dismissed.

Mr Rodgers brought a claim under section 100 of the Employment Rights Act 1996 (ERA) arguing he had been automatically unfairly dismissed.

The Employment Tribunal rejected his claim and the EAT has recently upheld this.

The legal details

Section 100 of the ERA makes the dismissal of an employee automatically unfair if they have been dismissed in the following instances:

• in circumstances of danger which an employee reasonably believed to be serious and imminent, which the employee could not reasonably be expected to avert and which caused the employee to leave or refuse to return to work; or
• in circumstances of danger which an employee reasonably believed to be serious and imminent which caused the employee to take, or proposed to take, appropriate steps to protect themselves or others from danger.

This is a right which is acquired from day one of employment so it did not matter that Mr Rodgers didn’t have two years of continuous employment when he was dismissed.

Whilst the Employment Tribunal accepted that Mr Rodgers had significant concerns about Covid-19, this wasn’t enough to bring him within the scope of statutory protection under section 100 of the ERA. The Tribunal’s decision to dismiss Mr Rodgers’ claim was based on the following factors:

• he had not specified why he felt the workplace was unsafe and therefore couldn’t show there had been any danger;
• his employer had implemented government recommended safety guidance at the workplace;
• he had not raised his concerns with his manager before he excused himself from the workplace; and
• he breached the government’s self-isolation guidance the day after he left the workplace, undermining his assertions that he was significantly concerned about Covid-19.

On these facts, the Tribunal refused to accept that Mr Rodgers had established that he was at serious and imminent danger in the workplace. Mr Rodgers appealed.

The EAT accepted that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside of the workplace that could prevent them from returning to the workplace. Clearly Covid-19 could be an example of serious and imminent circumstances away from the workplace.

However, on similar lines to the Tribunal, the EAT held that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large. The employer had taken the correct steps to avert the danger of Covid-19 in the workplace and, had Mr Rodgers followed those steps, the danger would have been prevented.

Mr Rodgers’ appeal was dismissed.

What this means for employers and employees

This case highlights the importance of employers implementing and enforcing Covid-19 health and safety measures, should government guidance stipulate it.

Whether or not the ‘serious and imminent danger’ threshold under section 100 of the ERA is passed, will be heavily influenced by the safety precautions the employer has taken.

Interestingly too, the Tribunal held that Covid-19 could not be treated as automatically creating circumstances of serious and imminent danger.

Employers may breathe a sigh of relief to hear this, as otherwise employees would be able to rely on section 100 of the ERA to stay away from the workplace as a result of Covid-19 in general.

For further advice on employment matters contact Stacey Cox at Wake Smith Solicitors on 0114 224 2087.

Find out more about our employment services.

Published 24/05/22