Regular readers of this blog may remember the case of Mr Rodgers who was dismissed from his job shortly after the first Covid-19 lockdown was imposed because he refused go into his workplace until restrictions were eased. His case has now been decided by the Court of Appeal and provides clarity for employers in the context of the pandemic.
Under sections 44 and 100 of the Employment Rights Act 1996, employees are protected from being subjected to a detriment (such as being suspended or having their pay deducted) or being dismissed for exercising their right to leave their workplace in some circumstances.
Section 100 makes the dismissal of an employee whose employment is terminated in the following instances automatically unfair:
- in circumstances of danger which they reasonably believed to be serious and imminent and which they could not reasonably be expected to avert, they left or proposed to leave or refused to return to their workplace’ (ERA, s.100(1)(d)), and
- in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or others from the danger (ERA, s.100(1)(e))
This is a 'day one' right and employees don't need two years' service to bring an unfair dismissal claim.
Mr Rodgers started working for Leeds Laser Cutting in 2019 as a laser operator. He worked in a large warehouse building ‘the size of half a football pitch’ with typically five other people. Shortly before the first national lockdown on 23 March 2020, one of Mr Rodgers’ colleagues displayed symptoms of Covid-19 and was sent home to isolate.
The business remained open and it informed its staff about the measures it had put in place so that they could continue working. These included social distancing, wiping down surfaces, and staggering start, finish and break times to avoid people congregating. It also provided masks for staff to use if they wanted to. These steps went further than government guidance at the time.
On 25 March 2020 Mr Rodgers had a cough which he attributed to the temperature and dust in the warehouse. Covid tests weren't available at that time, but he obtained a self-isolation note until 3 April 2020.
Mr Rodgers informed his manager by text on 29 March 2020 that he was going to stay off work ‘until the lockdown has eased’ because he was concerned about what would happen if he contracted Covid and infected his two vulnerable children (one child has sickle cell anaemia and the other was only seven months old). His manager replied by text 'okay mate, look after yourself'. There was no other contact between the parties until 24 April 2020, when Mr Rodgers found out that he had been dismissed (it's not entirely clear how) and texted his manager to ask why his employment had ended.
He alleged that his dismissal was automatically unfair as he had exercised his legal right to leave his workplace under section 100 of the Employment Rights Act 1996.
The tribunal rejected his claim. You can read why here. Mr Rodgers appealed to the EAT. The parties agreed that leaving or refusing to return to a workplace could only fall within s.100(d) - it could not constitute the taking of an appropriate step within s.100(e).
The EAT accepted, in principle, that an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented them from returning to it. But that hadn't happened here. Mr Rodgers hadn't believed that his workplace was any more dangerous that anywhere else and his employer had put in place sufficient safeguards to prevent danger. It therefore rejected his appeal.
Court of Appeal decision
The Court of Appeal dismissed the case unanimously and said that it couldn't fault the tribunal's reasoning. It then gave guidance to help employers and their staff understand how to correctly interpret s100(1)(d).
It began by making the point that, whilst there must be ‘circumstances of danger’, this isn't an objective test. An employee can be wrong on this point provided they reasonably believed there was danger that was both serious and imminent. The key point was that the danger has to arise in the workplace and the employee must leave for this reason and not for any other one. And it's irrelevant for these purposes if the same danger is elsewhere - such as on the bus or in the supermarket.
The Court of Appeal said that the questions to be decided in a s. 100(1)(d) claim are:
- Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
- Was that belief reasonable? And if it was:
- Could they reasonably have averted that danger? If not:
- Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:
- Was that the reason (or principal reason) for the dismissal?
Implications for employers
This case will help employers, who put in place safe working practices, defend similar cases. In the early days of the pandemic, those people who had to go into their workplace, were told to wash their hands regularly and maintain social distancing. Other measures were introduced as the government learned more about the transmission of the virus and employers defending these sorts of claims will be expected to have followed the guidance that applied at the time.
We've been told that we have to live with Covid-19. Latest data indicated that in England nearly 16,000 people had the virus up to 14 January - a 44.5% reduction on previous figures. There's already evidence that a new Omicron variant is the "one to watch" in 2023. Studies have found that this strain is capable of evading antibodies from previous Covid infections or vaccinations. It's therefore possible that if this variant does take hold in the UK, the government may impose some restrictions (although, it's unlikely in my view, to introduce another lockdown). If that happens the question about whether employees' workplaces are safe may become relevant again - particularly for vulnerable people who continue to be most at risk from becoming ill or dying from the virus.
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