An Employment Tribunal has considered for the first time an unfair dismissal claim relating to COVID-19 under sections 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA 1996). These provisions provide employees with protection from dismissal if they leave or stay away from their workplace when they reasonably believe there is serious and imminent danger. The case concerned was Rodgers v Leeds Laser Cutting Ltd.
At the beginning of the first lockdown in March 2020, Mr Rodgers sent a message to his manager saying that he would be staying away from his workplace “until the lockdown has eased” because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with COVID-19. One month later, he was dismissed.
Mr Rodgers did not have two years’ continuous service with the company and therefore he was unable to claim ordinary unfair dismissal. Instead, he alleged that he had been automatically unfairly dismissed for exercising his statutory right to stay away from work due to his reasonable belief that there was serious and imminent danger.
However, on the facts of the case, the Tribunal held that Mr Rodgers did not have a reasonable belief in serious and imminent danger in the workplace. The Tribunal said that this had to be judged on what was known when the relevant acts took place. In particular, Mr Rodgers’ message to his manager did not mention any concerns about workplace danger and he could not show that there had been any such danger. The company had implemented the government safety guidance in place at the time regarding hand washing and social distancing. In addition, Mr Rodgers had not taken any steps to avert danger or raise concerns with his manager before refusing to come into work. In fact, despite his concerns about COVID-19, Mr Rodgers had breached the guidance in place at the time to drive a friend to hospital on 30 March 2020 (the day after leaving work).
The Tribunal rejected Mr Rodgers’ argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer’s safety precautions. It said that this could lead to any employee being able to rely on sections 100(1)(d) and (e) of ERA 1996 to leave the workplace, simply by virtue of the pandemic.
This case is only a first instance decision by a Tribunal and therefore it is not binding on any future cases. It is also fact specific and relates to the information available and guidance in place during the first lockdown in March 2020.
However, this decision is helpful in reminding employers of the importance of implementing appropriate COVID-19 secure measures in accordance with the government guidance in place from time to time. If an employer has put in place such measures then it will be harder for an employee to argue that the workplace is dangerous.
We are expecting the government to update its COVID-19 secure guidance in the coming weeks and we will, of course, keep you updated on any amended guidance that is issued.
If you have any COVID-19 employment related questions please contact a member of the Employment team.
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