Was an employee automatically unfairly dismissed for refusing to work during Covid-19 lockdown?
EAT: employee did not reasonably believe in serious and imminent danger at work and so was not automatically unfairly dismissed.
The pandemic has led to a number of employment tribunal cases which consider whether an employer dismissed or disadvantaged an employee because they refused to return to the workplace due to their fears about Covid-19.
A key question for the tribunal in these cases is whether the employee left or refused to return to the workplace in circumstances of danger which they reasonably believed to be serious and imminent.
The Employment Appeal Tribunal (EAT) has this month issued a judgment which provides further insight into how this question should be approached by tribunals in the context of the Covid-19 pandemic.
For details of the employment tribunal decision in this case, please see our article of April 2021: Was an employee automatically unfairly dismissed for refusing to attend work due to the covid-19 pandemic? (available on our website.)
Other previous articles available on our website which may be of interest on this topic include:
When the first Covid-19 lockdown began, Leeds Laser Cutting Ltd informed employees that the business would remain open and that safety measures would be put in place. The employer commissioned a professional risk assessment of the workplace and followed its recommendations, including wiping down surfaces, social distancing and staggering start, break and finish times for employees. The premises were a large warehouse-like space and there were only five employees.
Mr Rodgers left work on 27 March 2020 and did not return. He told his employer that he felt he had to stay off work until the lockdown was over, referring to his child who was at high risk due to suffering with sickle cell anaemia. Mr Rodgers acquired a self-isolation certificate from NHS 111 which covered the period from 28 March to 3 April 2020.
There was no further communication between the parties until a month later when Mr Rodgers’ employment was terminated.
Mr Rodgers subsequently brought a claim for automatic unfair dismissal under s.100(1)(d) Employment Rights Act 1996 (ERA). He argued 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.
The tribunal dismissed the claim. It concluded that Mr Rodgers’ 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. It found that it was not objectively reasonable for Mr Rodgers to believe there were circumstances of danger at work which were serious and imminent. It also found that Mr Rodgers could have acted to avert the dangers by following workplace guidance.
On appeal, the EAT upheld the decision of the employment tribunal.
Does the danger actually have to exist?
The EAT first considered whether there is a “gateway requirement” in section 100(1)(d) ERA claims that the circumstances of danger must actually exist. His Honour Judge James Tayler expressed his view that this would be a surprising conclusion.
HHJ Tayler used the helpful analogy of employees who left a workplace because they saw a green gas escaping and were later dismissed for doing so. Here, it was likely to be reasonable for the employees to believe there was a serious and imminent danger. If the green gas was later found to pose no danger to health, was it right that the employees would have no protection under section 100 ERA? However the EAT did not have to decide this point as the tribunal had already decided that the Covid-19 pandemic did in fact create circumstances of danger.
Did Mr Rodgers reasonably believe that the danger was serious and imminent?
The EAT agreed with the tribunal that the claim did not require the danger to arise from the workplace itself. It also agreed that there was no need for any harm that might be caused by the circumstances of danger to occur at the claimant's place of work, or to the employee or fellow employees.
HHJ Tayler accepted that an employee could reasonably believe that there is a serious and imminent circumstance of danger that exists outside the place of work that could prevent them from returning to it, and that such circumstances could be protected under section 100(1)(d) ERA.
In this case the claimant had genuine concerns about the pandemic, and particularly about the safety of his children. But that did not mean that he necessarily had a genuine belief that there were serious and imminent circumstances of danger at work or elsewhere that prevented him from returning to work.
The EAT held that the tribunal was right to find that Mr Rodgers did not hold a reasonable belief in serious and imminent circumstances of danger at work. It pointed to facts found by the tribunal including: the provision of masks by the employer; that the claimant had not asked for a mask; the substantial size of the workplace and its low occupancy; that the claimant could usually maintain social distancing at work; that he did not say he would not be returning on his last day at work; that he had driven his friend to hospital during his self-isolation period; and that he had worked in a pub during the pandemic.
Could the employee have averted any danger?
The EAT held that the tribunal had been entitled to find that the claimant could reasonably have taken steps to avert the danger by wearing a mask, socially distancing, and by sanitising and washing his hands.
Therefore, even if Mr Rodgers had been found to have a reasonable belief in the danger posed by his workplace or returning to it, his claim would not have succeeded.
Key learning points
This case suggests that the Covid-19 pandemic, and other similar largescale public health risks will be “circumstances of danger” which could give rise to protection for staff who are dismissed or disadvantaged because of steps they take to avoid the danger. However, in order to be protected the individual must reasonably believe in dangers in the workplace itself or dangers outside the workplace that could prevent them returning to it. General fears about safety in society will not be sufficient.
The comments of HHJ Tayler suggest that future case law may confirm that employees will be protected even where it later becomes clear that there was in fact no danger to health and safety. As long as the employee’s belief in the danger at the time is found to be reasonable, this judgment suggests they will be protected.
Mr Rodgers was not assisted by the fact that he had not raised specific concerns about workplace safety and that his actions outside of work (such as breaking self-isolation rules and working elsewhere during the pandemic) undermined his evidence that he subjectively believed in the danger posed by Covid-19 at work.
This case shows that employers will be in a stronger position to defend a claim where they have in place a thorough risk assessment, where they communicate to staff the risk mitigation measures within it, and can evidence steps taken to implement and reinforce those measures.
How Wrigleys can help
The employment team at Wrigleys is expert in advising charities, third sector and education sector clients on employment tribunal claims, including those relating to health and safety.
We have extensive experience in helping employers dealing with employees who are reluctant to return to work, including where there are potential disability discrimination concerns. We offer timely, pragmatic advice to reduce the risk of conflict and claims.Importantly, we work within the wider charities, social economy, and education teams at Wrigleys and so we also have in-depth understanding of how our clients’ governance and regulatory obligations impact on employment litigation risks. Our CSE team can further help to minimise your risks by providing advice on charity law, trustee and director duties and delegation of powers, reporting to the regulator, and reputational risk.
If you would like to discuss any aspect of this article further, please contact Alacoque Marvin or any other member of the employment team on 0113 244 6100.
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The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website. 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.