Unfair dismissal claim based on ‘serious and imminent’ COVID-19 danger is rejected

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Cases concerning COVID-19 are starting to reach the Employment Tribunal. Whilst the Tribunal’s judgment in each case will not be binding on others, employers will be keen to learn how the laws with which they have grappled during the last year are being applied.

These laws include protection from dismissal for employees who reasonably believe that they are in serious and imminent danger, and so decide to leave the workplace, or take steps to protect themselves or others. Dismissal for such reasons could be automatically unfair, and therefore result in unfair dismissal claims being brought. Whilst an employee usually needs to have worked for their employer for two years before they can bring an unfair dismissal claim, this is not necessary in such cases.

Rodgers v Leeds Laser Cutting Ltd considered the automatic unfair dismissal claim of Mr Rodgers, who had been employed by Leeds Laser Cutting Limited (LLCL) since June 2019 as a laser operator.

LLCL remained open following the first national lockdown in March 2020. It asked staff to work as normally as possible and assured them that the company was putting measures in place to facilitate this. By this point, the need to socially distance was common knowledge at LLCL.

LLCL appointed an external professional to carry out a risk assessment in mid-March which identified the level of risk in different scenarios and made recommendations on how to reduce it. Most of the recommendations were already in place at the time the assessment was conducted.

On 29 March 2020, Mr Rodgers texted his line manager stating that he had “no alternative but to stay off work until the lockdown had eased”. He explained that he had a “high risk” child who suffers from sickle-cell anaemia so “would be extremely poorly if he got the virus”, as well as a 7-month-old baby. He was concerned about infecting them with COVID-19 if he were to catch it.

Mr Rodgers was dismissed the following month. He claimed that he had suffered automatic unfair dismissal for exercising his rights to:

  • refuse to return to his place of work in persisting dangerous circumstances which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert; and
  • take appropriate steps to protect himself or other persons from danger which he reasonably believed to be serious and imminent.

Mr Rodgers’ case was heard by Employment Judge Anderson, who confirmed that “every case will need to be considered on its facts and merits”. He found that whether a belief in serious and imminent workplace danger was reasonable must be judged on what was known at the time when the relevant acts took place.

Despite Judge Anderson accepting in principle that “conditions pertaining to Covid-19 could potentially amount to circumstances of serious and imminent danger”, he did not think they applied to this case, or that Mr Rodgers reasonably believed they did. Relevant facts here included:

  • on 30 March 2020, the day after Mr Rodgers texted his line manager explaining he had to stay off work, Mr Rodgers breached NHS self-isolation guidance to drive his friend to hospital;
  • Government safety guidance in March 2020 centred around social distancing and hand washing. LLCL had implemented both. Mr Rodgers’ text to his line manager on 29 March did not refer to any issues within the workplace specifically, and nor could Mr Rodgers show there had been danger at work; and
  • Mr Rodgers had inappropriately chosen to absent himself from work without first raising concerns at work or taking steps to avert any danger.

Employment Judge Anderson rejected the argument that Mr Rodgers could reasonably believe that COVID-19 created circumstances of serious and imminent danger, regardless of the measures his employer put in place. The Judge explained that accepting this submission could lead to any employee refusing to work “in any circumstances simply by virtue of the pandemic”.

Mr Rogers’ claims were unsuccessful.

Whilst this case was determined on its facts and does not bind future Tribunals, it suggests that an employer would be well advised to implement suitable COVID-19 secure measures. This may make it more difficult for an employee to show that their workplace is dangerous, thereby lessening the risk of success in related claims.

If you have any queries regarding this or any other employment matter, please do not hesitate to contact a member of the team.