In Rodgers v. Leeds Laser Cutting Ltd, an employee claimed automatic unfair dismissal after being dismissed for refusing to return to work as a result of concerns regarding COVID-19 at the start of the initial lockdown. The employment tribunal (ET) considered his rights under section 100(1) of the Employment Rights Act 1996 and rejected the claim. The ET's decision has now been upheld by the Court of Appeal.

Rodgers v. Leeds Laser Cutting Ltd – facts

The claimant, Mr Rodgers, had been employed by Leeds Laser Cutting Ltd (LLC) as a laser operator. The day after the government announced the first COVID-19 lockdown in March 2020, LLC put a series of safety measures in place following an external risk assessment.  They informed employees that they should continue to work as normal whilst following these safety procedures. The measures included strict social distancing, handwashing and the provision of masks. 

Employees had been consulted during the risk assessment process, and Mr Rodgers had not raised any concerns. Additionally, he did not ask to be provided with a mask, despite this option being made available to him.  He was also able to socially distance for the majority of the time as part of his role. Despite this, he informed his manager by text five days after the advice was set out by his employer that he would not be coming into work "until the lockdown was eased". He raised concerns about contracting COVID-19 and subsequently infecting his vulnerable children. Following this, there was no contact between Mr Rodgers and LLC until 26 April 2020, when he was dismissed on account of having been absent without leave or explanation. 

Mr Rodgers brought a claim against his former employer on the basis that the dismissal was automatically unfair under s.100(1) as he had serious concerns about imminent risks to health. He had not acquired two years' service at LLC, meaning that he did not have the length of service required to claim ordinary unfair dismissal. 

The Employment Tribunal decision

The ET considered section 100 of the Employment Rights Act 1996, which sets out the circumstances in which an employee's dismissal will be considered automatically unfair where it relates to health concerns. Mr Rodgers' claim was brought under both section 100(1)(d) and (e). Section 100(1)(d) (which was eventually held to be the only section which applied in this case) prescribes that an employee will be held to have been automatically unfairly dismissed if the reason for the dismissal relates to an employee exercising their right to leave work or refuse to return to work in circumstances of danger, which the employee reasonably believed to be serious and imminent.

The approach to deciding cases under this section is first to establish, objectively, whether there was a danger. The ET determined that the COVID-19 pandemic did present such a danger. 

Secondly, the ET must decide whether the employee reasonably believed that danger to be serious and imminent. On the facts and evidence provided, the ET held that Mr Rodgers did not hold such a reasonable belief as his decision to stay away from work was not directly linked to his working conditions, but to the pandemic in general. The ET rejected Mr Rodgers' argument that he was not sure that any safety measures would have made him feel safe enough to work, as this would enable any employee simply to choose not to work by citing COVID-19 as the reason. Additionally, in spite of his claims, Mr Rodgers had got into a car with a friend during his self-isolation period and worked in a pub later on during the pandemic. His claim was therefore dismissed.

The Employment Appeal Tribunal decision

Mr Rodgers appealed to the Employment Appeal Tribunal (EAT) which dismissed his appeal on the basis that the ET had been entitled to find that Mr Rodgers did not hold a reasonable belief that there was serious and imminent danger which prevented him returning to work.   Mr Rodgers then appealed to the Court of Appeal. 

The Court of Appeal decision

Again, Mr Rodgers' appeal was dismissed. The Court of Appeal also found that the ET was correct in its approach to limit the consideration of relevant dangers to those specific to Mr Rodgers' place of work. 

Comment

This case is the first COVID-19 dismissal case to reach the Court of Appeal and suggests that the courts are taking a strict view of such cases, and taking government guidance at the time into consideration. 

The decision does offer useful insight on the application of section 100(1)(d) which is pertinent to any potential automatic unfair dismissal claim related to COVID-19. Although Mr Rodgers was unable to satisfy the legal test for his claim, it was noted that COVID-19 could, in theory, give rise to the type of danger that would meet the requirements of section 100(1)(d).

However, the court did decide that an employee must hold a belief that they would be subject to the perceived danger as a result of actually being at the workplace. With regards to COVID-19, this highlights that a general fear about a danger to society as a whole is not enough – there must be specific risks arising from being in the workplace itself. 

Issues such as whether or not social distancing was viable and whether other safety measures were put in place to minimise the danger are likely to be considered in any future COVID-19-related automatic unfair dismissal cases. 

If you have any concerns regarding automatic unfair dismissal cases or issues surrounding COVID-19, please reach out to our PRM team.