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In the recently reported case of Rodgers -v- Leeds Laser Cutting ET1803829/2020, the Employment Tribunal considered whether an employee had been automatically unfairly dismissed after leaving his workplace because he was worried about infecting his vulnerable children with COVID-19.

Mr Rodgers had been working as a laser operator for the respondent for just under a year when the COVID-19 pandemic began. Following the announcement of the first national lockdown on 23 March 2020, the respondent issued an ‘employee’ communication which stated that the business would remain open and asked staff to work normally, but with measures such as social distancing and enhanced hand-washing in place.

On 29 March 2020 Mr Rodgers sent a message to his manager to say that he would be keeping away from his workplace “until lockdown has eased” as he was concerned about infecting his vulnerable children with COVID-19. He obtained a self-isolation note from the NHS for the period 28 March 2020 to 03 April 2020; however, on 30 March 2020 he drove his friend to hospital.

Mr Rodgers brought a claim in the Employment Tribunal alleging that he had been automatically unfairly dismissed for exercising his rights under sections 100(1)(d) and (e) of the Employment Rights Act 1996.

In order for a claim for automatic unfair dismissal under section 100(1)(d) and (e) to succeed, an employee must establish that they were dismissed because:

  1. They were in circumstances of danger which they reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, and they left or refused to return to their place of work; or
  2. They were in circumstances of danger which they reasonably believed to be serious and imminent and they took (or proposed to take) appropriate steps to protect themselves, or other persons, from the danger.

 

In this particular case, the Tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known by the employee at the relevant time when actions were taken.

The Tribunal felt that Mr Rodgers had failed to establish a reasonable belief that he was in serious and imminent danger if he remained at work because:

  • Mr Rodgers had himself breached self-isolation guidance to drive a friend to hospital the day after he left work.
  • The respondent had implemented the precautions that were recommended by the Government at that relevant time (social distancing and handwashing).
  • Mr Rodgers’ message to his manager did not mention concerns about workplace danger and, in light of the fact his employer had already put in place steps to reduce the risk of transmission, he could not point to any such danger.
  • Mr Rodgers had failed to take steps to try and avert any danger and had not raised concerns with his manager before he left work. The Tribunal felt this was not appropriate in the circumstances.
  • In particular, the Tribunal was concerned that Mr Rodgers tried to argue that COVID-19 created circumstances of serious and imminent workplace danger, even where employers had implemented appropriate safety precautions. To accept such an argument would allow any employee to leave any workplace and rely on sections 100(1)(d) and (e).

Taking these facts into consideration, the Tribunal concluded that Mr Rodgers’ decision to remain off work was not directly linked to his working conditions and was, instead, related to general concerns about the pandemic.

It is important to note that this decision is not binding, and each case will be reviewed on its own specific facts.

However, the case does reinforce the importance of assessing workplace risks in relation to COVID-19, implementing appropriate measures to reduce those risks and effectively communicating with staff so that they are clear on what has been put in place to reduce risk.

Employers who do this are likely to establish a defence to any claims brought under sections 100(d) and (e) ERA 1996 as it will be harder for employees to establish that it was reasonable for them to believe their workplace was dangerous.

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