In the first appeal court case about a health and safety dismissal related to the coronavirus (Covid-19) pandemic, the Court of Appeal held in Rodgers v Leeds Laser Cutting Ltd that any danger perceived by the employee from the virus must arise from the workplace itself as opposed to any generalised fears that they might have about it.
Mr Rodgers had been working as a laser cutter for less than a year before the start of the first Covid lockdown. His workplace, which was a large warehouse type space, had put a number of measures in place to protect against coronavirus (Covid-19), such as wearing masks and social distancing.
After developing a cough, Mr Rodgers texted his manager at the end of March 2020 to say that he intended to stay off work until the lockdown had eased because he had a vulnerable child at home. His absence was covered by a self-isolation note until 3 April. However, he did not contact his employer again until 24 April when he sent a text asking why he had been dismissed.
He initially claimed automatic unfair dismissal contrary to sections 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA). On appeal, he relied only on section 100(1)(d).
Section 100(1)(d) states that it is automatically unfair to dismiss someone who left or refused to return to their place of work in “circumstances of danger which the employee reasonably believed to be serious and imminent and which he [sic] could not reasonably have been expected to avert”.
Tribunal and EAT decisions
Dismissing his claim, the tribunal concluded that Mr Rodgers’ decision to stay off work was not directly linked to his working conditions as he had not raised any concerns about them with his employer, but rather because of general concerns he had about the virus.
Mr Rodgers appealed, arguing that the tribunal was wrong to conclude that because he believed that there was a generalised danger from coronavirus (Covid-19), he did not have a reasonable belief that his workplace specifically presented a serious and imminent danger.
The EAT dismissed his appeal, holding that the tribunal had legitimate grounds for concluding that Mr Rodgers did not have a reasonable belief that there were serious and imminent circumstances of danger that prevented him from returning to work. Although he believed that the virus presented a serious and imminent danger generally, it was not reasonable for him to believe that his workplace presented the same level of danger.
Decision by Court of Appeal
Having analysed the relevant law, the Court of Appeal set out the following questions that it said a tribunal has to decide in cases brought under section 100(1)(d) ERA:
- Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
- Was that belief reasonable? If so:
- Could they reasonably have averted that danger? If not:
- Did they leave, or propose to leave or refuse to return to the workplace because of the (perceived) serious and imminent danger? If so:
- Was that the reason (or principal reason) for the dismissal?
Dismissing the appeal, the court held that it was clear from the statute that the perceived danger must emanate from the workplace itself, as opposed to general concerns about the virus. In other words, the employee must believe that they were subject to the danger because of “some problem with the premises or the equipment or the system of working, whether in the form of an accident or the manifestation of a more chronic problem”.
This case will reassure employers who put in place safety measures to protect against the risk of infection by Covid-19 that they will be protected in defending claims of serious danger in the workplace.