In Rodgers v Leeds Laser Cutting Ltd ET1803829/2020, an employee lost his claim when the employment tribunal found that his dismissal was not automatically unfair.
The employee told his manager that he would not return to work until after lockdown because he feared he would infect his children with COVID-19.
Section 100 of the ERA 1996 protects employees by providing that dismissal shall be automatically unfair where the reason for the dismissal is one of the following reasons:
- Dismissal for leaving or staying away from dangerous workplace (section 100(1)(d)). Where an employee reasonably believes that they are in serious and imminent danger and they could not be reasonably expected to avert it, they are protected from dismissal if they leave, propose to leave, or refuse to return to the workplace while the danger persists.
- Dismissal for taking action to prevent danger (section 100(1)(e)). Employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger, are protected from dismissal on that basis.
Action short of dismissal on the grounds set out above could amount to a detriment which is unlawful under Section 44 of the Employment Rights Act 1996.
The employee sent a message to his manager on 29 March 2020 to state that he would be staying away from his workplace “until the lockdown has eased” because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with COVID-19. A month later, he was dismissed.
The employee did not have sufficient service to claim ordinary unfair dismissal. Instead, he alleged that he had been automatically unfairly dismissed for exercising his rights under sections 100(1)(d) and (e) of the ERA 1996.
The tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known when the relevant acts took place. On the facts, such a belief could not be established, so sections 100(1)(d) and (e) were not engaged and the claim failed. In particular:
- Despite the employee’s concern about COVID-19, he had breached self-isolation guidance to drive a friend to hospital on 30 March 2020 (the day after leaving work).
- The employee’s message to his boss did not mention concerns about workplace danger and he could not show there had been any such danger. In March 2020, government safety guidance advised hand washing and social distancing. The employer had implemented both precautions.
- The employee had not taken any steps to avert danger or raised concerns with his manager before absenting himself from work. This was not appropriate.
The tribunal rejected the employee’s argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer’s safety precautions. It found that accepting this submission could lead to any employee being able to rely on sections 100(1)(d) and (e) to leave the workplace, simply by virtue of the pandemic.
This decision is not binding and turned on the specific facts. However, it demonstrates the importance of implementing appropriate COVID-19 secure measures. Employers who do so may reduce the risk of successful claims under sections 100(1)(d) and (e) by making it harder for employees to establish that the workplace is dangerous.
Case: Rodgers v Leeds Laser Cutting Ltd ET1803829/2020 (1 March 2021) (Judge Anderson).
