Was an employee automatically unfairly dismissed for refusing to attend work due to the Covid-19 pandemic?
Tribunal considers application of workplace protection in cases of ‘serious and imminent danger’.
As staff begin to return to the workplace, employers will be hoping to avoid confrontations around health and safety issues as a result of lingering worries about Covid-19. Where staff refuse to attend work or take other actions to avoid a perceived safety risk, it is important for employers to be aware of the possibility of claims under sections 44 and 100 of the Employment Rights Act 1996 (ERA 1996).
Section 44 broadly protects staff from detrimental action by their employer if they refuse to attend work because they believe they, or someone else, is in serious and imminent danger that they could not reasonably have averted.
Section 100 provides routes for workers to claim automatic unfair dismissal if they can show that they were dismissed for a prohibited reason. Chief among these is that the worker was dismissed for leaving (or proposing to leave) work when they reasonably believed there was serious and imminent danger that could not be averted (s.100(1)(d)) or where they took (or proposed to take) ‘appropriate’ steps to protect themselves or others when they believed they were in serious or imminent danger (s.100(1)(e)).
For more information on the effect and application of these provisions, see our earlier article Refusing to work because of fears about Covid-19 – section 44 of the Employment Rights Act.
These provisions are particularly pertinent in the context of the pandemic, but it has been difficult for employment lawyers to comment on how they would be applied to the pandemic in practice as there is little case law to interpret them. Perhaps inevitably, some tribunal decisions on this topic are starting to come through, including a recent case focussed on s.100.
Mr Rodgers began working for LLCL in the Summer of 2019. LLCL’s business operated out of ‘a large warehouse-type space’ where typically five people worked in this space at any one time.
On 23 March 2020 when the first lockdown began, LLCL communicated with staff confirming the business would remain open, asking staff to work as normal and that the company would be putting measures in place to allow it to operate as normal. LLCL subsequently followed a number a recommendations which derived from a professional risk-assessment of the workplace, including wiping down surfaces, social distancing and staggering start, break and finish times for staff to reduce mingling.
Mr Rodgers left work on 27 March 2020 and did not return. In a text message exchange a few days later with a manager at LLCL, he explained he had to stay off work until the lockdown eased. He referred to the fact he had a child who was at high risk due to suffering with sickle cell anaemia and that he had a baby who was only a few months old and therefore didn’t know if the child had underlying health issues.
There was no further communication between the parties until a month later, when Mr Rodgers contacted LLCL stating that he had been told he was sacked for self-isolating and asking for stated reasons and documents, including his P45. This ultimately led to Mr Rodgers’s employment being terminated.
Mr Rodgers subsequently brought a claim for automatic unfair dismissal under s.100(1)(d) and (e) ERA 1996 on the basis that the reason for his dismissal was that he left or refused to return to work due to circumstances of danger in the workplace which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert and which he did for the protection of others (i.e. his family).
Considering the facts of the case in the context of these provisions, the Tribunal found that Mr Rodgers had not raised serious concerns about his safety at work with LLCL whilst he was at work and that there was no evidence LLCL had threatened Mr Rodgers with termination due to self-isolating and refusing to attend for work.
The Tribunal found on the facts a number of points which undermined Mr Rodgers’s claims under sections 100(1)(d) and (e). For instance, it concluded that Mr Rodgers’s decision to remain off work was not directly linked to a risk to health and safety within the workplace, rather his concerns were about the virus generally in society and that in his communications with LLCL he did not cite his working conditions as the reason for him not returning to work.
In addition, the Tribunal concluded that whilst Mr Rodgers genuinely believed there were circumstances of serious and imminent danger at work, it was not objectively reasonable to hold this view due to the measures put in place by LLCL in the warehouse, and that Mr Rodgers could have acted to avert the dangers by following the workplace guidance.
For these reasons the tribunal found that Mr Rodgers did not meet the requirements of s.100(1)(d) and (e), did not benefit from its protection and subsequently his claims for automatic unfair dismissal were dismissed.
It remains to be seen if this decision will be appealed, but for now this first-instance decision provides some useful insight into how courts and tribunals will approach the issue of s.100 ERA 1996 in the context of the pandemic.
It is easy to sympathise with Mr Rodgers’s situation. In March and April 2020 the virus was still a largely unknown entity with the government and public still unsure precisely how it spread and what made individuals particularly vulnerable to its most serious effects. In this context, given his concerns about his family’s health, it is easy to see why Mr Rodgers may have felt staying away from work was in his family’s best interests.
However, as noted by the tribunal, Mr Rodgers’s concerns were not limited to his workplace but extended more generally to society. This, together with evidence showing his employer took action to follow government workplace guidance and the fact that Mr Rodgers could not clearly establish that the reason for his dismissal was his exercise of precautions under sections 100(1)(d) and (e), ultimately led his claim to fail.
Mr Rodgers was relying on a claim of automatic unfair dismissal because he did not have two years’ service to bring an ‘ordinary’ claim. If he had enough service to claim ordinary unfair dismissal, LLCL’s actions and inactions (including the lack of communication following Mr Rodgers’s last day at work) may well have led to a decision that he was unfairly dismissed on the grounds of procedural failures. In addition, it is not clear at all if deciding to dismiss someone because they refuse to return to work due to fears around Covid-19 would fall within the band of reasonable responses in an ordinary unfair dismissal situation.
It is also worth noting that the employer in this case did not have to contend with discrimination claims under the Equality Act 2010. Mr Rodgers did not claim to be discriminated against but his is clearly a case where the disability of others played a factor. If employers face a similar situation, they will need to be mindful of potential discrimination (and discrimination by association) claims where someone refuses to return to work on health and safety grounds linked to the Coronavirus.
If you would like to discuss any aspect of this article further, please contact Michael Crowther or any of the employment team on 0113 244 6100.
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The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.