Court of Appeal rules on dismissal for refusing to work due to COVID-19

The Court of Appeal has now handed down its judgment in Rodgers -v- Leeds Laser Cutting, and has found that a tribunal was entitled to find that an employee who failed to attend work during the pandemic was not automatically unfairly dismissed for staying away from the workplace in the face of serious and imminent danger.

This is the first case relating to COVID-19 and s100(1)(d) of the Employment Rights Act 1996 (ERA) to travel as far as the Court of Appeal. We reported on the initial tribunal finding here.

Unfair dismissal under the Employment Rights Act

Section 100 of the ERA makes the dismissal of an employee automatically unfair where:

• in circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably be expected to avert, they left or proposed to leave or refused to return to their workplace (ERA, s. 100(1)(d)); and
• in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themself or others from the danger (ERA, s. 100(1)(e)).

There is no service requirement for this claim, so this protection is a day one right. As the employee had less than two years’ service, he was unable to bring an ordinary unfair dismissal claim.

Dismissal for not attending work due to fear of COVID-19

The claimant who had short service, failed to attend work after his initial isolation note had expired and was subsequently dismissed. Mr Rodgers told his manager that he was staying away from work “until the lockdown has eased” because of his concerns about infecting his vulnerable children. There was no contact between the employer and Mr Rodgers until his dismissal a month later, following which, he brought an employment tribunal claim under section 100 of the ERA.

The tribunal held that, although the claimant did have genuine concerns around COVID-19, these were general rather than workplace-specific.

The Court of Appeal outlined five questions that a tribunal has to answer in cases under s100(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 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 unnecessary.

Prior to the Court of Appeal, the Employment Appeal Tribunal (EAT) accepted that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace, that prevented him from returning to the workplace. However, on the facts of this case, Mr Rodgers did not reasonably believe that serious and imminent danger existed, either at work or at large.

The EAT referred to the tribunal’s conclusion that Mr Rodgers considered his workplace constituted no greater a risk than there was at large outside of the workplace. The employer had taken considerable steps to avert the danger of COVID-19 infection in its workplace by carrying out a detailed risk assessment and implementing various safety measures and had Mr Rodgers followed those steps, the danger would have been averted. As a result, the key requirement in s.100(1)d that there must be a danger that cannot reasonably be averted was not established.

For employers, the Court of Appeal’s finding will be a welcome confirmation of the tribunal’s initial decision. The finding establishes that employees must rely on more than a vague, generic fear of danger to justify absences or claim unfair dismissal.

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.