It is unlawful to dismiss an employee for refusing to work 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, and while the danger persisted, they refused to return to their place of work.
It is also unlawful to dismiss an employee who took appropriate steps to protect themselves or another person from danger in circumstances of danger which they reasonably believed to be serious and imminent. However, on 1 March 2021, in D Rodgers – v - Leeds Laser Cutting Limited, the Leeds Employment Tribunal held that on these set of facts there was no basis for the Employment Tribunal to conclude that Mr. Rodgers had been automatically unfairly dismissed contrary to section 100(1)(d) and (e) Employment Rights Act 1996 ('ERA 1996').
The Claimant was a laser cutter in a large warehouse type space – big enough to have a skip or forklift. Only five people worked at a time. On 16 March 2020, a colleague (TA) displayed symptoms of Covid-19. He was sent home to self-isolate initially on sick pay and then furloughed until after his employment ended.
The Respondent had undertaken an external professional risk assessment, carried out around Mid-March 2020. The recommendations included wiping down, social distancing, and staggering start/finish/lunch/break times. Staff had staggered start times and were told repetitively not to congregate during breaks, etc. However, leaving times were not staggered. Government measures were reiterated and discussions had taken place about the need to socially distance and wash hands. Masks were also available on the premises. The Claimant had not asked for masks or raised any concerns at this time.
The Claimant had a slight cough on 25 March 2020 and he attributed this to dust and temperature. On 27 March 2020, the Claimant developed a persistent cough. He initially said TA displayed symptoms on 27 March 2020 and had worked together on 27 March 2020 - which was incorrect (If they had worked together, it would have been on the 16 March 2020).
The Claimant left work at a normal time on 27 March 2020 and did not return because he believed the virus presented a 'serious and imminent' danger at work. He argued that his child needed to shield as he had sickle cell and was therefore clinically extremely vulnerable. The Claimant's absence of four weeks without permission resulted in his dismissal.
The Claimant claimed that his dismissal was automatically unfair pursuant to section 100(1)(d)-(e) ERA 1996 because he had less than two years' service and was dismissed for refusing to work because the coronavirus presented a serious and imminent danger in the workplace.
During his absence, the Claimant drove a colleague to the hospital and worked in a pub which he claimed had secure measures in place.
Employment Judge Anderson dismissed the Claimant's claim for automatic unfair dismissal and questioned whether there were circumstances of danger which the Claimant reasonably believed to be serious and imminent and whether the Claimant had taken or proposed to take appropriate steps to protect himself or other persons from the danger or to communicate those circumstances to his employer.
It was held if these criterions were met, section 100(1)(d) and (e) ERA 1996 would be engaged and the Respondent will need to satisfy the Tribunal that the Claimant was not dismissed for taking or proposing to take steps to protect himself and/or another person, in this case members' of the Claimant's family.
On the facts of this case, Employment Judge Anderson found that the Claimant did not reasonably believe the danger to be in the workplace, but in the world at large. Importantly the Judge placed weight on the fact that the Claimant had driven a colleague to hospital, contrary to government guidelines and also worked in a pub.
He had not raised his concerns about the virus with his employer. Furthermore, the Employment Tribunal decided on these facts that his employer had taken all the steps that it reasonably could to protect its workforce.
This was one of the first health and safety automatic unfair dismissal claims arising out of the Coronavirus pandemic. Whilst some employers may welcome this decision, they should be mindful that this claim was decided at Employment Tribunal level, therefore only persuasive as opposed to binding authority.
In rejecting the Claimant's claim, Employment Judge Anderson did make it clear that there could be circumstances where the coronavirus would amount to "serious and imminent danger." One will only need to refer to the Government's serious and imminent danger declaration at the outset of the pandemic.
On these set of facts, the Respondent taken all reasonable steps to make its employees safe. The Claimant had not raised his concerns about any inadequate safety measures before leaving work; and was working in a pub when he was supposed to have been self-isolating. Our view is that this really did not assist his case that he was concerned about isolating.
This Judgment makes it clear that the battleground on health and safety dismissal (and indeed detriment claims under section 44 ERA 1996) will be fact sensitive and be decided on a case by case basis.
We are of the belief that these claims are more likely to succeed in cases where an employer does not have a robust risk assessment and at the time in question the government guidelines encouraged people to work from home, particularly due to an increasing infection rate and/or death toll, possibly due to a new transmissible variant.
We are further of the belief that these claims are more likely to enjoy success if the worker or employee has (or shielding someone) that has an underlying medical condition and who have not been vaccinated.
Further the Tribunal also observed that had the Claimant had a qualifying service, his dismissal have been unfair pursuant to section 98(4) ERA 1996 as there were concerns as to the procedure followed. This again highlights the importance of following a fair procedure for employers.
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