Blog post written by JMW Solicitors LLP
In this Employment Appeal Tribunal (EAT) case, the court was asked to consider whether the Employment Tribunal (ET) made an error in law by finding that the Claimant was not automatically unfairly dismissed in relation to health and safety reasons.
This is understood to be the first time that the appeal courts have been asked to consider a Covid-19 related dismissal. The court was asked to consider the point on whether employees may be considered unfairly dismissed due to their refusal to attend work as a result of Covid-19 related concerns. The relevant law here is s.100(1)(d) and (e) of the Employment Rights Act (ERA) 1996.
What are the facts of this case?
Mr Rogers commenced work as a laser operator for Leeds Laser Cutting Ltd in June 2019. The Respondent described the workplace as a large warehouse-style place, ‘about half the size of a football pitch’, in which only 5 individuals worked there at a given time.
On 16th March 2020, one of Mr Roger’s colleagues contracted Covid-19 and was sent home to self-isolate. The first lockdown commenced on 23rd March 2020, and around the same time an external consultant came in to review the safety of the premises. The Respondent introduced measures such as social distancing and masks. Mr Rogers sent an email to his employer 29th March 2020 and stated that he needed to stay home until lockdown eased because he was concerned about infecting his vulnerable children.
On 26th April 2020, Mr Rogers received a P45 from Leeds Laser Cutting Ltd, which they admitted constituted a dismissal. There was a dispute between the parties about the specific events revolving around the dismissal, however Mr Rogers claimed that his termination of employment was due to the raising of health and safety concerns in connection with Covid-19.
What is the relevant law?
Section 100(d) of the ERA states that an employee shall be regarded as unfairly dismissed if he considered himself to be in serious and imminent danger, which he could not have reasonably been expected to avert, and subsequent refused to return to the workplace.
Section 100(e) of the ERA lists another potential reason for an unfair dismissal being the employee taking appropriate steps to protect himself or others from danger, in similar circumstances to those stated in s.100(d).
Mr Rogers brought his claims under these two sections of the legislation.
What did the ET and the EAT decide?
The ET originally decided that the Claimant’s belief that he was in serious and imminent danger was not ‘objectively reasonable’. They found that his concerns were not wholly attributed to the safety of the workplace, but instead the safety of being anywhere but his home in the midst of the pandemic. The Tribunal also found that the Claimant’s version of events were inconsistent with him believing that he was in serious and imminent danger, such as the fact that the workplace was large with few people working there. Also, it was relevant that the Claimant didn’t wear a mask despite being provided with one, and also worked in a pub during the lockdown period.
The EAT largely agreed with the ET’s findings, and in any event found that they did not make an error at law. They stated that the Claimant did not satisfy the test contained within section 100 (d) and/or (e) ERA 1996 (the appeal only dealing with subsection (d)).
What can we learn from this?
As many claims such as this have been lodged in the ET and this EAT decision is binding on lower courts, many employers will be glad to hear of the failure of a claim under s.100 ERA 1996. This claim shows the importance of being able to prove that there was a reasonable belief of serious and imminent danger, which could not be established on the facts.
However, this claim failed partially because Mr Rodgers was inconsistent with his version of events and it worked against him that he was found to have driven a friend to hospital and worked in a pub during lockdown. Leeds Laser Cutting Ltd’s premises were also large and permitted effective social distancing. The Tribunal further considered that sufficient measures were in place to alleviate any real concerns of the Claimant about the safety of the workplace premises.
Employers should be mindful of this decision and the burden on Claimants to prove the relevant elements of the test. Nevertheless, the ET will still consider all factors including whether employers appropriately handled any concerns and attempted to create a safe environment for employees, whether this relates to Covid-19 reasons, or other health and safety concerns.
This bulletin is for general guidance purposes only and should not be used for any other purposes.
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