Employee was not automatically unfairly dismissed under section 100 ERA

Readers may recall the case of Rodgers v Leeds Laser Cutting Ltd [2022], where the Employment Appeal Tribunal upheld a tribunal decision that an employee was not automatically unfairly dismissed when he was dismissed for leaving work and refusing to return at the start of the first COVID-19 lockdown. The Court of Appeal has recently upheld this decision.

Background

Mr Rodgers worked as a laser operator. On 24 March 2020, the day after the first COVID-19 lockdown was announced, employees were advised that measures were being put in place to protect them from COVID-19, and that they should work as normally as possible. An external adviser had undertaken a risk assessment and considered appropriate measures, including social distancing and handwashing. Mr Rodgers could socially distance for most of his role and he did not raise concerns about the occasions when he could not. Masks were available for employees although he did not request any.

On 29 March 2020, Mr Rodgers informed his manager by text message that he would be staying away from his workplace until the lockdown has eased as he was worried about infecting his children who were vulnerable. He obtained a self-isolation certificate from NHS 111 for the period 28 March to 3 April 2020. There was no other contact between Mr Rodgers and his employer. On 26 April 2020, he was dismissed because he had been absent without leave or explanation.

Mr Rodgers brought a claim alleging that his dismissal had been automatically unfair because he had exercised his rights under sections 100 of the Employment Rights Act (ERA) and submitted that he was not sure that any safety measures would have made him feel safe enough to return to work. However, despite these concerns, he had driven a friend to hospital during his period of self-isolation and had worked in a pub later during the pandemic.

Decision

The appeal was dismissed. This was based on the Tribunal’s findings, accepting that Mr Rodgers had believed that COVID-19 was a general danger in the community, but he did not have such a belief as regards the situation at his workplace. On the evidence, the tribunal had concluded that Mr Rodgers had not felt seriously at risk at work.

The Court of Appeal considered that the five questions that a tribunal must decide in a claim brought under section 100(1)(d) ERA were:

• Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If yes:
• Was that belief reasonable? If yes:
• 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 yes:
• Was that the reason (or principal reason) for the dismissal?

This is the first case to reach the Court of Appeal regarding section 100(1) of the ERA to dismissals related to the COVID-19 pandemic, so it remains to be seen what will be decided in other similar cases as the Court of Appeal deemed it would be unsafe to provide more general guidance. The Court was unequivocal that the circumstances of danger must arise at the employee’s workplace and that the employee must believe that they are subject to the danger as a result of being at the workplace.

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