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In the case of Rodgers -v- Leeds Laser Cutting Ltd (which we first reported on in April 2021), Mr Rodgers worked for the respondent as a laser operator from June 2019 until his dismissal in April 2020.

At the outset of the COVID-19 pandemic in March 2020, Mr Rodger’s colleague displayed symptoms of COVID-19 so was sent home by the respondent and told to isolate. Subsequent to this, the UK Government announced a national lockdown on 23 March 2020 and, in response, the respondent immediately issued an employee communication on 24 March 2020 which confirmed that the business would remain open but that measures were being put in place to protect against COVID-19. These measures would be based on government guidance at the time, together with a risk assessment carried out by an external professional.

Mr Rodgers left work on 27 March 2020 and then sent a text to his boss on 29 March 2020 to say that he felt he had no alternative but to stay away from work until the lockdown had eased because he had a child who was clinically extremely vulnerable and a young baby.

He provided a self-isolation note from the NHS for the period 28 March to 3 April 2020 but acknowledged that on 30 March 2020 he had driven his friend to the hospital. Mr Rodgers’ employment was terminated by the employer on 24 April 2020. As he had less than two years’ service he bought a claim for automatically unfair dismissal on health and safety grounds as there is no service requirement for this.

Crucially, in order for a claim for automatically unfair dismissal under section 100(1)(d) and (e) of The Employment Rights Act 1996 to succeed an employee must establish that they were dismissed because:

  1. They were in circumstances of danger which they reasonable 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 dismissed Mr Rodgers’ claim on the basis that he had failed to establish any such reasonable belief. The Tribunal found that Mr Rodgers’ concerns related to the pandemic generally and not to the specific working conditions at his workplace. It held that Mr Rodgers had not raised specific concerns with the respondent regarding the safety of the workplace, nor had he taken steps to discuss these concerns with the respondent. He had instead sent a text to inform the respondent he would not be coming into work, but failed to mention any concerns about the conditions at his workplace.

Mr Rodgers appealed the Tribunal’s decision on the basis that they had erred in law in finding that his dismissal was not automatically fair.

The EAT upheld the Tribunal’s decision. In doing so, the EAT noted that, in principle, employees could have a reasonable belief of a serious and imminent danger to health and safety due to circumstances outside of the workplace which might then prevent them from attending work. However, in this particular case, the EAT found that the facts did not support any such reasonable belief. The EAT found that there were steps that Mr Rodgers could reasonably have taken to protect himself from the risks he perceived both at work and outside, including, for example, wearing a mask, regularly sanitising his hands, and maintaining social distancing.

It will be reassuring for employers that the Tribunal’s original decision has been upheld, especially now that a great deal of the uncertainty around COVID-19 has been removed following the government’s introduction of plans to live with the virus. Employers should, however, remain mindful of the fact that the virus is still prevalent in society and whilst there is no longer a legal requirement to do so it would be best practice to continue to consider the risk posed by COVID-19 in any risk assessments, especially where employers have staff who may be deemed to be disabled and who may be particularly vulnerable.



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