The Court of Appeal issued the first judgment at this level on the question of whether or not a dismissal of an employee who refused to attend work during the Covid-19 pandemic on the grounds that to do so would present a health and safety risk was automatically unfair.
Section 100 of the Employment Rights Act 1996 states:
An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that —
(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work,
(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.
Mr Rodgers had commenced work with Leeds Laser Cutting Limited on 14 June 2019. On 29 March 2020, shortly after the start of the first Covid lockdown, he texted his manager to say that he would be staying away from work because he was concerned about the risk of infection. On 26 April 2020 he was dismissed. He brought a claim under section 100(1) (d) and (e) of the 1996 Act.
The Employment Tribunal dismissed his claim on the basis that he did not have a reasonable belief that there was a serious and imminent danger in the workplace, even although he did reasonably believe that there was a serious and imminent danger in the community at large.
The Employment Appeal Tribunal likewise dismissed his appeal which by then only concerned section (1)(d). The case came before the Court of Appeal.
Usefully the Court of Appeal set out the questions to be decided in a section 100(1)(d) claim as:
- Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
- Was that belief reasonable? If so:
- 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?
The Court of Appeal rejected the Appellant's submission that the Employment Tribunal Judge had interpreted section 100 (1)(d) as only applying to dangers arising in and specific to the workplace and not to the more general and widespread danger Covid-19 presented. The Court of Appeal held that the Employment Tribunal Judge had not so erred in applying that erroneous interpretation of the law, but had instead merely found, as a matter of fact, that the Claimant did not reasonably believe that there was a serious and imminent danger of infection in the workplace, even when holding a reasonable belief that there was a serious and imminent danger in the community at large.
The Court of Appeal also rejected the Appellant's submission that section 100 (1)(d) could apply, not only where an employee reasonably believed that they were in serious and imminent danger at the workplace, but also where the perceived danger arose on their journey to work. This of course was a highly pertinent matter in the context of Covid-19 as people perceived the danger to be increased on places like public transport. The Court of Appeal however pointed out that for the purposes of section 100 (1)(d) the employee must believe that they are subject to the danger as a result of being at the workplace: if that were not the case, the question of them leaving the workplace would not arise.
That said, the Court of Appeal also held that it did not follow that the danger had only to arise in the workplace for section 100(1)(d) to apply. To proceed on that basis would have been an error in law, but the Employment Tribunal Judge, in the opinion of the Court of Appeal had not proceeded on that basis.
This is a useful judgment for employers who sought to put in place adequate safety measures to reduce the risk of infection. Even if employees had a general fear of infection more generally, if the workplace itself was a safe environment, dismissing an employee for leaving or refusing to return would be fair.
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