Court of appeal charts path for COVID dismissal claims

This article was originally published on Law360.

As we approach the third anniversary of the first coronavirus pandemic lockdown in the UK, COVID-19 related health and safety dismissal complaints are being heard by employment tribunals and appeal courts. 

In 2022, Rodgers v. Leeds Laser Cutting Ltd. was the first COVID-19 related health and safety dismissal case the Court of Appeal considered.

Upholding earlier employment tribunal and employment appeal tribunal decisions, the Court of Appeal held that the claimant, Darren Rodgers, had not been automatically unfairly dismissed when he refused to return to work until after the pandemic lockdown had ended.

The court rejected Rodgers' argument that there were circumstances of COVID-19 related danger at his workplace that he could have reasonably believed were serious and imminent. 

Rodgers had worked at Leeds Laser Cutting Ltd. [2022] EWCA Civ 1659. as a laser cutter since June 2019. The premises remained open when the first national COVID-19 pandemic lockdown came into force on 23 March 2020.

Leeds Laser Cutting Ltd. had earlier that month undertaken a COVID-19 risk assessment of its premises and put in place measures such as advising employees about social distancing, having masks available and hand-washing.

Rodgers worked in the warehouse during the first week of lockdown and did not object to any of the measures in place. He then obtained an isolation note for the period to 3 April 2020, because he had reported coronavirus symptoms.

Over the weekend Rodgers texted his manager explaining that he had no alternative but to stay off work until the lockdown eases as he had a child with sickle cell anemia who would become very unwell if they caught COVID-19. 

Rodgers did not mention the isolation note and did not return to work after the self-isolation period, and neither he nor his employer had any further contact with each other. Rodgers was dismissed on April 26, 2020, for being absent without leave. 

Background law

Rodgers subsequently started employment tribunal proceedings, claiming that he had been automatically unfairly dismissed under Section 100(1)(d) and (e) of the Employment Rights Act. 

Under these provisions an employee is automatically unfairly dismissed: 

• (d) In circumstances of danger that the employee reasonably believed to be serious and imminent and that he could not reasonably have been expected to avert, he left, or proposed to leave, or, while the danger persisted, refused to return to his place of work or any dangerous part of his place of work
• (e) In circumstances of danger that the employee reasonably believed to be serious and imminent, he took, or proposed to take, appropriate steps to protect himself or other persons from the danger. 

Because Rodgers' dismissal came at the time of the first national coronavirus-related lockdown, employees at that time were subject to the Health Protection (Coronavirus) Regulations 2020 announced on 23 March 2020. 

Guidance under the legislation stated that although there were restrictions on the reasons for people leaving their homes, one of the permitted reasons was to go to work that could not be carried out from home, eg, if they operated machinery or worked in construction or manufacturing. This applied to Rodgers, whose job could not be done from home. 

Court of appeal's decision

Rodgers' claim for automatic unfair dismissal for COVID-19 related health and safety grounds was rejected by both the employment tribunal and the employment appeal tribunal. The Court of Appeal also dismissed the appeal. 

It referred to, and agreed with, the employment tribunal's decision. The employment tribunal recognized that Rodgers had concerns about the COVID-19 pandemic generally, and his young family. 

However, on the facts, Rodgers admitted it was not hard to socially distance in his workplace and that there were reminders around hand-washing. 

The employment tribunal held that rather than circumstances of serious and imminent danger related to COVID-19 being within the workplace, with Rodgers refusing to return to work due to any danger or poor conditions, the reason was the general circumstances of serious and imminent danger posed by COVID-19. He did not intend to return to work until the national lockdown came to an end. 

The precise nature of the distinction between the serious and imminent danger being "all around," ie, the COVID-19 pandemic generally as opposed to "within the workplace," was considered by the Court of Appeal. 

In his grounds of appeal to the Court of Appeal, Rodgers argued that the employment tribunal erroneously believed that as a matter of law, Section 100(1)(d) was only concerned with dangers that were specific to the workplace in that they arose there. 

It did not consider the question of whether his belief in the danger all around from COVID-19 was reasonable per se because it rejected his complaint on the grounds that his concerns were not specific to the workplace. 

The Court of Appeal rejected this argument. The distinction the employment tribunal had made to danger being all around as opposed to within the workplace was factual rather than a proposition of law. It was based on what Rodgers thought was the lack of serious risk of infection at work, rather than the higher risk elsewhere in the community. 

This means that the perceived danger must arise in the workplace but can also be present at large in the wider community, as COVID-19 was during the pandemic. However, if the danger does exist in the wider community, it must also exist in the workplace. 

The Court of Appeal made the point that "it is immaterial that the same danger may be present outside the workplace — for example on the bus or in the supermarket." However, the employee must then reasonably believe that there is a serious and imminent danger in the workplace. 

5 questions to consider in health and safety dismissal cases

Going forward, the Court of Appeal listed five questions that an employment tribunal has to decide in a case with regard to Section 100(1)(d) and (e): 

• Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so: 
• Was that belief reasonable? If so: 
• Could they reasonably have averted the danger? If not: 
• 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: 
• Was that the reason, or principal reason, for the dismissal? 

The Court of Appeal noted that the first two questions could be broken down further, addressing separately whether there was a reasonable belief in the existence of the danger per se and in its seriousness and imminence, although in most cases this would not be necessary. 

Wider context of this decision

The Court of Appeal was conscious that this was the first appeal to reach with regard to the application of Section 100(1) to COVID-19 pandemic-related dismissals. The court asked the parties to refer it to any relevant employment tribunal decisions, but decided, having reviewed these cases, that it would be "unsafe to attempt any more general guidance." 

Rodgers did not bring an ordinary unfair dismissal claim as he did not have two years' continuous service. The employment tribunal and Court of Appeal alluded to this, hinting that this might have met with some success, given the manner of his dismissal, and that there did not appear to be any disciplinary procedure carried out. 

The employment tribunal did consider that, if its finding that Rodgers' concerns were only about the COVID-19 pandemic generally rather than the workplace was incorrect, whether Rodgers' belief that there were circumstances of serious and imminent danger in the workplace was objectively reasonable. 

The employment tribunal held that such a belief was not reasonable due to factors such as the size of the workplace that allowed social distancing. 

It also thought that Rodgers could reasonably have been expected to avert any dangers in the workplace, by adhering to the guidance at that time and that there was no evidence that he did so. 

There are comparatively few health and safety dismissal cases, not least because if employees have two years' continuous service, they are likely to bring a claim for ordinary unfair dismissal citing an employer's lack of fair reason or fair procedure for dismissal. 

Depending on the facts, an automatically unfair dismissal claim under Section 100 potentially provides an alternative remedy for those employees with less than two years' service but is also one to which the statutory cap on a compensatory award does not apply. 

In terms of whether there are dangerous conditions in the workplace entitling an employee to leave or stay away — as was argued by Rodgers in this case — this has, in the past, been held to apply not just to physical conditions in the workplace but also due to behaviour of other employees.

In Harvest Press Ltd. v McCaffrey in 1999 IRLR 778., the employment appeal tribunal held that an employee was automatically unfairly dismissed when he walked out after another employee was abusive toward him. 

Employment tribunal decisions on dismissals arising from COVID-19 concerns in the workplace have been upheld where employees have made protected disclosures or raised health and safety concerns. 

That the Court of Appeal has set out a clear, five-stage approach as to how tribunals should address such health and safety claims is to be welcomed going forward, as is the confirmation that whether or not a particular health and safety danger is present in the wider society or environment, it must also actually exist in the employee's workplace. 

Employers can be reassured by this decision where they can demonstrate that they have taken steps to reduce the risk of infection in the workplace, or any other type of health and safety risk, and can show that they did so in a clear, measured and practical way.

In the context of COVID-19, if an employer, like that of Rodgers, conducted a health and safety risk assessment and implemented safeguards such as social distancing and staggered clocking-out times and had a well-ventilated workplace and reminded employees to regularly wash their hands, then they should be well positioned to successfully defend a claim presented under Section 100 (1). 

The Court of Appeal also made clear the necessity of it being an employee's concerns about health and safety in the workplace, rather than just in the wider environment, that are required for an individual to be protected.