Rodgers v Leeds Laser Cutting Ltd

An employee who lost his job for refusing to work during the pandemic due to what he claimed was a ‘serious and imminent’ danger has lost his case at the Court of Appeal. This is the first case relating to Covid-19 and s.100(1)(d) of the Employment Rights Act 1996 to reach the Court of Appeal and determines the employers liability in relation to serious and imminent danger claims from employees during the pandemic.

Case background:
Mr Rodgers worked in a warehouse which remained open during the pandemic lockdown as they produced materials for the NHS. He could not work from home. Leeds Laser Cutting (LLC) carried out a risk assessment and put in place new safety measures to allow employees to continue working including staggered start and finish times, facemasks and social distancing.

Mr Rodgers told his manager he would not be returning to work until the lockdown had eased, as he was concerned about the apparent risk to his vulnerable children. There was no further communication between the parties until steps were taken to dismiss Mr Rodgers one month later. Mr Rodgers had not been working for 2 years to bring an ordinary unfair dismissal claim so brought a claim of automatic unfair dismissal under s.100(1)(d) and (e) of the Employment Rights Act 1996.

The relevant part of the legislation reads as:

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a)–(c) …

(d) 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, or

(e) 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.

Employment Tribunal

The Employment Tribunal dismissed the claim. The Tribunal understood that Mr Rodgers had concerns about Covid-19 but determined that these were general concerns and not related to the workplace specifically. The Tribunal also considered the day-to-day actions of Mr Rodgers which included him not wearing a facemask, leaving his home during isolation, and working in a pub during lockdown. The Tribunal therefore held that in the circumstances, they could not see that Mr Rodgers would perceive the danger as serious or imminent.
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 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 the existence of the pandemic – this is not what the legislation intended.

The Tribunal also considered the steps LLC had taken to mitigate the spread of the virus in the workplace. The Tribunal held that had Mr Rodgers followed such steps, the dangers would have been reduced, resulting in non-engagement of the key requirement of s.100(1)(d) that the danger cannot be reasonably avoided.

The Employment Appeal Tribunal upheld the Tribunals ruling, noting that it was only a claim under s.100(1)(d) which would be appropriate in the circumstances.

Court of Appeal
The Court of Appeal agreed with the Employment Tribunal and set out 5 questions that a tribunal had to decide in cases under s.100(1)(d):

1. Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
2. Was that belief reasonable? If so:
3. Could they reasonably have averted that danger? If not:
4. 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:
5. Was that the reason (or principal reason) for the dismissal?

Questions (1) and (2) could in theory be broken down into two questions, addressing separately whether there was a reasonable belief in the existence of the danger and in its seriousness and imminence; but in most cases that is likely to be an unnecessary refinement.

The Court noted that "it is the policy of the statute that (employees) should be protected from dismissal if they absent themselves (from the workplace) in order to avoid… …danger" and that it is sufficient that the employee has a reasonable belief in the existence of danger as well as in its seriousness and imminence, rather than requiring actual danger.

However, ultimately the Court held that the belief that the workplace presented an imminent danger was not objectively reasonably. Lord Justice Underhill stated, “[The tribunal judge] was simply looking at the claimant’s belief and considering whether it was reasonable. The ‘reasons set out above’ are… in essence, that ‘it was not hard to socially distance and measures were in place to reduce the risk of Covid-19 transmission’. As we have seen, there is no challenge to that conclusion in its own terms.”

Conclusions
The case reassures employers who put in place safety measures to protect against the risk of infection by Covid-19 in the workplace that they will be protected in defending claims of serious danger in the workplace under s.100(1)(d) and (e) Employment Rights Act 1996.

This is the first case relating to Covid-19 and s.100(1)(d) and (e) of Employment Rights Act 1996 which has gone to the Court of Appeal and should set a precedent for cases to come. If you wish advice in relation to claims under s.100(d) and (e) during the pandemic, or otherwise, please contact John Grant (jg@wjm.co.uk), Martin Stephen (mss@wjm.co.uk), Liam Entwistle (lae@wjm.co.uk) or Andrew Wilson (ajpw@wjm.co.uk)