Dismissal for leaving work and refusing to return during the pandemic was not an automatically unfair dismissal
The pandemic has brought several employment issues to the fore, including whistleblowing and health and safety dismissals, both of which can give rise to an automatic unfair dismissal claim for which there is no minimum service requirement.
The Claimant in this case, Mr Rodgers, worked for Leeds Laser Cutting Ltd (LLC) as a Laser Operator. The day after the first lockdown was announced, LLC sent out staff communication advising that measures were being put in place but that they were to work as normally as possible. A risk assessment had been conducted by an external advisor and staff were advised about social distancing and hand washing, as well as being provided with (optional) masks. Mr Rodgers was able to social distance during most of his work and he raised no concerns about when he could not. He also opted not to wear a mask.
Mr Rodgers later developed a cough but attributed it to dust and continued to work. Two days later he advised his manager that he would be staying away from the workplace until the lockdown had eased due to concerns he could infect his vulnerable children (a baby and child with sickle-cell anaemia). He obtained a self-isolation certification for 28 March to 3 April 2020 but had no further contact with his employer until he was dismissed a month later.
Mr Rodgers had insufficient service to pursue an unfair dismissal claim. Instead, he alleged that his dismissal was automatically unfair on the basis that he had exercised his rights under section 100(1)(d) (he left work and refused to return to work due to serious and imminent danger that he could not avert) and (e) (he took steps to protect himself and others from serious and imminent danger) of the Employment Rights Act 1996.
During his evidence, Mr Rodgers said that he was not sure that any safety measures would have made him feel safe enough to return to work but also acknowledged that he had driven a friend to hospital and later worked at a pub during the pandemic.
The Employment Tribunal dismissed his claim because he had not established a reasonable belief in a serious and imminent workplace danger. Furthermore, he had taken no steps to avert this or raised concerns with his manager before leaving work. His email to his manager made no reference to the workplace but simply referred to him being away until lockdown had eased. Therefore, the evidence suggested that Mr Rodgers was concerned about the pandemic generally, rather than his workplace.
Importantly, the Tribunal rejected the employer’s position that these sections were not intended to apply to the pandemic as well as Mr Rodgers’ argument that the pandemic was such a serious and imminent danger that could not be averted with any measures. It emphasised that each case must turn on its facts and merits.
Mr Rodgers appealed to the Employment Appeal Tribunal (EAT). His appeal was dismissed because the claim was not made out on the facts.
In considering this case, the EAT established a number of helpful points:
- The danger in question for a section 100 claim need not be specific to work or the workplace but can apply to a danger at large (such as a pandemic);
- To succeed in such a claim, the Claimant must show they had a reasonable belief in serious and imminent danger that affects their ability to go to work – concerns about the pandemic and the risk to a Claimant’s family were not sufficient;
- It may be difficult to establish a reasonable belief in serious and imminent danger when the employer has adhered to public health guidance and/or professional health and safety advice and no concerns have been raised by the employee; and
- When it comes to determining if a Claimant has a reasonable belief that coming to work presents a serious and imminent danger, the extent of a Claimant’s risk avoidance outside of work could be relevant.
This is the first appellate decision regarding the application of this area of law to dismissals during the pandemic and it provides helpful guidance in terms of how it may be applied in similar cases.