It has been determined that an employee who refused to attend work during the pandemic did not have a reasonable belief in “serious and imminent” danger.
The Employment Appeal Tribunal (EAT) has upheld a tribunal decision that an employee had not been automatically unfairly dismissed for leaving work and refusing to return at the start of the first COVID-19 lockdown.
What are the facts?
Mr Rodgers worked as a laser operator for Leeds Laser Cutting. Early in the first COVID-19 lockdown, the employer sent a communication to employees, stating that measures were being put in place to protect them from COVID-19, and asking them to work as normally as possible.
A risk assessment had already been undertaken by an external adviser, and conversations were had with staff regarding measures including social distancing and the need for handwashing. It was generally possible for Mr Rodgers to observe social distancing for most of his role. He did not raise any concerns about the occasions when this was not possible. Masks were available for employees although Mr Rodgers had not asked for one.
A few days later, Mr Rodgers sent a text message to his manager to state that he would be staying away from his workplace “until the lockdown has eased” because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia). However, despite his concerns, it later emerged that Mr Rodgers had driven a friend to hospital during a period of self-isolation and had also worked in a pub later in the pandemic.
Mr Rodgers was subsequently dismissed and brought a claim alleging that his dismissal had been automatically unfair under section 100 of the Employment Rights Act 1996 (ERA 1996) because he had a reasonable belief that he was in “serious and imminent” danger at his place of work which permitted him to stay away from work.
What was the decision?
The EAT upheld the decision of the original employment tribunal that the dismissal was not unfair.
The EAT accepted that the pandemic could constitute a workplace danger under section 100 ERA 1996. However, the tribunal had legitimately concluded that the claimant did not hold a reasonable belief in serious and imminent danger on these particular facts. The employer had followed Government guidance and offered masks (the Claimant didn’t take one) as well as maintaining social distancing.
Furthermore, the fact that he had driven his friend to hospital when he was supposed to be isolating, and the fact that he had worked in a pub during the pandemic undermined his argument.
Our view and comments
Arguments based on section 100 ERA 1996 were raised by many school employees during the pandemic, based on the advice of their unions. This is the first appeal court case on the issue and shows that general concerns about the pandemic (or any other danger) are not enough – the employee must hold a reasonable belief that the danger is so serious and imminent they cannot carry out their particular role, even with additional safety mitigations such as social distancing and masks put in place.
The case also shows that if an employer has followed Government and/or public health guidance on creating as safe a workplace as far as possible then it may be hard for the employee to argue successfully that the danger is sufficiently serious and imminent.