Employment Law Cases

COVID-19: dismissal for refusal to return to work

An employee dismissed for leaving work and refusing to return because of COVID-19-related concerns was not automatically unfairly dismissed.

Section 100 of the Employment Rights Act 1996 (ERA) makes the dismissal of an employee whose employment is terminated in the following instances automatically unfair:

in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he left or proposed to leave or refused to return to his workplace’ (ERA, s. 100(1)(d)), and
in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect themselves or others from the danger (ERA, s. 100(1)(e))

This is a Day 1 right and employees don’t need two years’ service to bring such a claim. This case is the first to reach the Court of Appeal on the interplay between s. 100 and COVID-19.

Background

Following the start of the first national lockdown, Leeds Laser Cutting (LLC) carried out a risk assessment and put in place various safety measures to enable it to continue operating, including staggered start/finish times, providing masks and strict social distancing measures. Two days later, Mr Rodgers told his manager that he’d be staying away from work ‘until the lockdown has eased’ because of his concerns about infecting his vulnerable children. There was no contact between LLC and Mr Rodgers until his dismissal a month later. As he didn’t have the necessary two years’ service to bring an ordinary unfair dismissal claim, he brought a claim of automatic unfair dismissal under ERA, s 100(1)(d) and (e).

The tribunal dismissed his claim. It accepted that Mr Rodgers had significant concerns about COVID-19 generally. However this was not enough to bring him within the scope of the statutory protection:

The communication with his manager had not mentioned any workplace dangers and he could not show that there was in fact any such danger. LLC had implemented the recommended government safety guidance.
Despite his concerns about COVID-19, he had breached self-isolation guidelines to drive a friend to hospital and had been happy to work in a pub.
Mr Rodgers had not taken any steps to avert the alleged danger or raised concerns with his manager before leaving work.

While COVID-19 could potentially amount to circumstances of serious and imminent danger, to accept Mr Rodgers’ argument that, despite the safety measures in place, his belief (of a serious and imminent danger which he could not avert) was reasonable would be to accept that the very existence of the virus created circumstances of serious and imminent danger. This would lead to any employee being able to rely on s. 100 to leave the workplace, simply by virtue of the pandemic – and this is not what the legislation is aimed at. Mr Rodgers appealed.

The EAT dismissed his appeal. The EAT suggested, and the parties agreed, that leaving or refusing to return to a workplace could only fall within s. 100(d) and could not constitute the taking of an appropriate step within s. 100(e) – the appeal therefore only considered the case under s. 100(d).

The EAT accepted that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented him from returning to the workplace. However, on the facts of this case, the tribunal had found that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large.

The EAT stated that on a fair reading of the judgment, the tribunal had concluded that Mr Rodgers considered his workplace constituted no greater a risk than there was at large. The employer had taken considerable steps to avert the danger of COVID-19 infection in its workplace. Had Mr Rodgers followed those steps the danger would have been averted. As a result the key requirement in s.100(1)d that there must be a danger that can’t reasonably be averted was not engaged.

Court of Appeal decision

The appeal was unanimously dismissed, essentially on the basis that the tribunal’s reasoning could not be faulted.

The Court of Appeal did however provide some guidance on the correct interpretation of s. 100(1)(d). It began by making the point that, whilst it refers to ‘circumstances of danger’, there need not objectively be a danger – a reasonable but erroneous belief on the part of the employee is enough. Also, the danger must arise at the workplace. If that were not the case the question of an employee leaving would not arise. However, it does not follow that it can only arise at the workplace.

The Court of Appeal said that the questions to be decided in a s. 100(1)(d) claim are:

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?

Comment

This decision is reassuring for employers who did take steps to reduce the risk of infection in the workplace that they will be well placed to defend claims presented under s. 100 based on an employee’s belief that COVID-19 presented a serious and imminent danger in the workplace.