Automatically unfair dismissal and coronavirus

One of the many unanswered questions over which employers puzzled following the emergence of coronavirus was whether the dismissal of an employee who stayed away from work because of a fear of the virus would be automatically unfairly dismissed, under general health and safety protections? The Employment Appeal Tribunal has now considered this issue in a case called Rodgers v Leeds Laser Cutting Limited.

Background

The Employment Rights Act 1996 (ERA 1996) provides employees with protection from unfair dismissal where, in most circumstances, the employee has been employed for at least two years. Equivalent protections exist in Northern Ireland under the Employment Rights (Northern Ireland) Order 1996 (ERO 1996) for employees with at least 1 year's complete service.

Section 100 of the ERA 1996 (article 132 of the ERO 1996) deals with additional protection for dismissals relating to health and safety. Under section 100 (1) of ERA 1996 (article 132(1) of the ERO 1996), an employee will be automatically unfairly dismissed if the reason (or principal reason) for the dismissal is that:

• 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 (s100 (1)(d) ERA 1996); or
• 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 (s100 (1)(e) ERA 1996/article 132(1)(e) ERO 1996).

If an employee is dismissed in these circumstances, the usual minimum service requirement in order to bring a claim of unfair dismissal does not apply.

Please see our Briefing, Seven Top Questions on Returning Staff to Work During Coronavirus for more information about health and safety protections at work in the context of the pandemic and how to reduce the risk of claims.

In the case of Rodgers v Leeds Laser Cutting Limited, Mr Rodgers relied on sections 100(1)(d) and (e) ERA 1996, when he alleged that he had been automatically unfairly dismissed by his employer, having refused to attend work until the first Covid-19 lockdown ended. Mr Rodgers could not claim ‘ordinary’ unfair dismissal, under section 98 ERA 1996, because he had been employed for less than two years.

Facts

Mr Rodgers worked as a laser operator for Leeds Laser Cutting Limited (LLC) from June 2019 until his dismissal in April 2020. Mr Rodgers worked in a large warehouse with five other employees of LLC before the first Covid-19 lockdown was announced on 23 March 2020. Shortly afterwards, LLC put in place measures to prevent the transmission of Coronavirus, in line with recommendations made in a health and safety risk assessment.

Mr Rodgers began a period of self-isolation on 28 March 2020, which was to last until 3 April 2020. On 29 March 2020, Mr Rodgers sent an email to his manager, informing him that he had to stay off work until the lockdown has eased, as he did not want to risk infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with Covid-19. Mr Rodgers continued to stay away from work and there was no further contact between Mr Rodgers and his employer, until 24 April 2020, when LLC sent Mr Rodgers his P45. LCC accepted that Mr Rodgers' receipt of the P45 constituted a dismissal.

It later transpired that while Mr Rodgers was away from work, his actions were not entirely consistent with his apparent concern about contracting Coronavirus: he was found to have been working in a pub and had also broken his self-isolation to give a friend a lift in his car.

However, that did not deter Mr Rodgers from bringing a claim for automatic unfair dismissal under sections 100(1)(d) and (e) ERA 1996, citing the special protections from unfair dismissal for employees who have concerns about risks to health and safety.

Decision

An Employment Tribunal (ET) found that sections 100(1)(d) and (e) ERA 1996 were not engaged and Mr Rodgers' claim failed (please see our April 2021 Briefing for a summary of that decision).

The ET could not establish that Mr Rodgers had a reasonable belief that he was in serious and imminent workplace danger during the time he refused to attend work. This was for the following reasons:

• The contradiction between Mr Rodgers informing LLC he would not be returning to work until lockdown eased and taking his friend to hospital in his car.
• In his email to LLC on 29 March 2020, in which Mr Rodgers did not mention that he had concerns about workplace danger.
• Mr Rodgers could not evidence that there had been any workplace danger when he refused to work, as LLC had followed the Government’s safety guidance, implementing precautions such as handwashing and social distancing.
• It was not appropriate for Mr Rodgers not to have taken any steps to avert danger or alert his manager to any concerns, before refusing to attend work.
• The ET did not accept Mr Rodgers' argument that Covid-19 created circumstances of serious and imminent workplace danger regardless of the safety precautions implemented by LLC. If the ET were to have accepted this argument, it could lead to any employee claiming that they were entitled to leave their workplace, simply by virtue of the pandemic.

Mr Rodgers appealed the ET’s decision to the Employment Appeal Tribunal (EAT) but his appeal was dismissed.

The EAT found that the ET applied the law correctly when reaching their decision and that Mr Rodgers' dismissal was not automatically unfair. Based on the evidence available, it could not be determined that Mr Rodgers had a reasonable belief that he was in serious and imminent workplace danger when he refused to return to his place of work.

Comment

The outcome of this case sends a clear message to employers: the pandemic alone will not make a dismissal automatically unfair for health and safety reasons. There has to be more. In this case, the employee’s actions were inconsistent with his claims about fear of Coronavirus.  And it is also highly relevant that the employer in this case had taken reasonable steps to prevent the spread of Coronavirus, in line with recommendations in a health and safety risk assessment.

Employers will be reassured that the EAT has taken a robust approach in the first binding decision on the application of s.100 ERA in the context of the pandemic. However, it is important to stress that employers who have taken reasonable steps to mitigate virus risks in the workplace will be more likely to defend a claim of automatically unfair / health and safety dismissal linked to Coronavirus.

Now that almost all Coronavirus restrictions have been lifted, it is likely to be even more difficult for employees to establish claims based on Coronavirus health and safety risk. However, employers continue to be well advised to follow current government advice on managing the virus at work, albeit that the advice is now, broadly, to deal with Coronavirus similarly to other infectious diseases (please see our April 2022 Briefing, Coronavirus- Navigating the Next Stage)

The EAT’s Judgment in Rodgers v Leeds Laser Cutting Limited can be found here.

Contributors: Natasha Whitham and Sarah Maddock

For further news and updates on employment law developments as they happen, please follow our specialist Employment Law Twitter Feed @TLT_Employment and subscribe to our Employment Law Focus podcast – the latest episode, on race discrimination  is available here.