Covid-19 and protection from dismissal

Did the danger of Covid-19 in the workplace warrant protection from dismissal?

Sections 100(1)(d) and (e) of the Employment Rights Act 1996 provide employees with protection from dismissal if they leave the workplace, refuse to return to it, or take other steps to protect themselves, if they reasonably believe there is serious and imminent danger.

The first claim of this nature which related to Covid-19 reached the Court of Appeal in Rodgers v Leeds Laser Cutting. The employee worked in a large warehouse with few other employees. There were Covid-related safety measures in place even before the first lockdown, including extra cleaning and social distancing. The employee worked the first week of lockdown but then messaged his manager to say he wouldn’t be coming to work until lockdown eased. He was worried about passing on the virus to his vulnerable child. He was dismissed a month later and brought an unfair dismissal claim.

The employment tribunal said that a reasonable belief in serious and imminent danger should be judged on what was known at the time the actions were taken. The tribunal said that the employee didn’t believe there was serious and imminent danger in the workplace – he believed there was serious and imminent danger everywhere. His message said he would return when the pandemic eased not when the workplace was made safe. He also was inconsistent about his fear, taking other Covid-related risks outside work. The workplace was large enough to facilitate social distancing. His belief in danger was therefore not reasonable. The Employment Appeal Tribunal (EAT) agreed. The employee could have taken reasonable steps to avert the danger by adhering to safety guidelines in place, including distancing, handwashing and mask-wearing, both at work and in general. The employee appealed.

The Court of Appeal agreed with the tribunal. The employee’s belief that there was serious and imminent danger in the workplace was not reasonable on the facts – the size of the workplace, the measures in place, and the ability to socially distance. The Court stopped short of giving more general guidelines because cases are so fact specific. However, they said there were five questions to ask in this kind of case:

1. Did the employee believe there was serious and imminent danger at work?

2. Was that belief reasonable?

3. Could the employee have reasonably averted that danger?

4. Did they leave (or refuse to return to) work because of that danger?

5. Was that the reason for the dismissal?

The employee in this case did not help himself, claiming he was too scared of the virus to attend his large workplace whilst being willing to take other risks outside work. Although the employee did not win, this litigation shows that the ‘danger’ does not have to be workplace-specific and can include danger that exists more widely like a pandemic. An employee must reasonably believe that the danger affects their ability to go to work. Employers who follow government and industry specific guidance will significantly reduce any ‘danger’ posed to staff by a virus and with it the risk of litigation.