372: Was COVID-19 a reasonable reason for employees not to return to work?
Under section 100(d) of the Employment Rights Act 1996 (ERA), employees will be automatically unfairly dismissed if they refuse to attend work in circumstances of danger which they reasonably believe to be serious and imminent, and which they could not reasonably be expected to avert. In Rodgers v Leeds Laser Cutting Ltd, the Employment Appeal Tribunal (EAT) has upheld an Employment Tribunal’s decision that a claim under this provision failed because the employee did not have a reasonable belief that COVID-19 amounted to a serious and imminent danger preventing his return to work. This is the first appeal decision involving a COVID-related dismissal under section 100(d) of the ERA.
Mr Rodgers worked as a laser operator for Leeds Laser Cutting Ltd in a large warehouse-type space, where usually only five staff would be working at any one time. When the first lockdown started on 23 March 2020, the company informed employees that it would stay open with appropriate health and safety measures to protect against COVID, including social distancing, masks, cleaning protocols and staggered working hours. These measures had been recommended by an external adviser following a professional risk assessment. On 29 March 2020, Mr Rodgers informed his line manager that he would not return to work until the end of lockdown because he was worried about infecting his children, one of whom has sickle cell anaemia. He obtained a self-isolation certificate for the period 28 March to 3 April 2020. There was no further contact between Mr Rodgers and the company, and a month later he was dismissed.
Mr Rodgers did not have sufficient continuous service to claim ordinary unfair dismissal but brought a claim alleging that his dismissal was automatically unfair because he had exercised his rights under section 100 of the ERA.
The Employment Tribunal (the Tribunal) dismissed his claim because he had not satisfied the requirements for section 100(d). Although the Tribunal accepted that, in principle, COVID-19 could give rise to circumstances of serious and imminent workplace danger, in this case Mr Rodgers had failed to establish a reasonable belief in such circumstances and had not taken steps to avert any danger. Crucially, he had not raised any concerns with his manager prior to deciding not to attend work. Despite his alleged concerns, he had also driven a friend to hospital whilst self-isolating and had worked in a pub later on during the pandemic. In addition, the company had put in place all the precautions advised by the Government at that time.
The EAT has now upheld this decision. Mr Rodgers may have had genuine concerns about the pandemic, and the risks to his children. However, this did not necessarily mean he had a reasonable belief that there were serious and imminent circumstances of danger preventing his return to his workplace. Even if the Tribunal was wrong about this, it had been entitled to find that Mr Rodgers could have been expected to take reasonable steps to avert the danger such as wearing a mask, social distancing, and hand sanitising, all measures which had been put in place by his employer.
Unsurprisingly, we have seen an increase in claims under section 100 ERA since the start of the pandemic in 2020. As health and safety dismissals are automatically unfair, there is no qualifying service needed to bring a claim, and the usual statutory cap on compensation does not apply. As this case shows, employers can minimise the risk of successful claims by conducting risk assessments, following professional and public health advice, implementing all recommended safety measures, and properly consulting with staff.
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