Author
kathryn clapp

Kathryn Clapp

Senior Counsel – Knowledge

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Author
kathryn clapp

Kathryn Clapp

Senior Counsel – Knowledge

Read More

18 January 2023

Law at Work - January 2023 – 4 of 5 Insights

Employee who was absent from work due to COVID health and safety workplace concerns was not unfairly dismissed

  • Briefing

Why the case matters

While the COVID-19 pandemic itself could be circumstances for an employee to believe that he was at risk of serious and imminent danger; such a scenario must also exist in the workplace too. Rodgers v Leeds Laser Cutting Ltd is the first COVID related health and safety dismissal case the Court of Appeal has considered. It upheld a tribunal decision that an employee was not automatically unfairly dismissed when he refused to return to work until after the pandemic had eased. There were no circumstances of danger at the employee's workplace that the employee could have reasonably believed were serious and imminent. 

Facts

The warehouse where the employee worked remained open during the first COVID-19 lockdown in 2020. Following a health and safety risk assessment, procedures were put in place such as social distancing, sanitising surfaces and staggering times staff started and left work. The employee stated to his manager that he had no alternative but to stay off work "until the lockdown has eased" due to a child having a serious underlying medical condition who could become extremely unwell if they became ill with COVID. Following the expiry of an agreed period of self-isolation (due to his own illness) he failed to return to work and was dismissed. The employee brought an employment tribunal claim for automatic unfair dismissal for health and safety grounds under section 100(1)(d) Employment Rights Act 1996. This states that an employee is unfairly dismissed if the reason is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, and which they could not reasonably have been expected to avert, the employee leaves or refuses to return to work.

Decision

Following his claim being rejected by both the tribunal and the EAT, the Court of Appeal dismissed his appeal and stated there were five questions which an employment tribunal has to decide:

  • 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:
  • if 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 perceived danger must arise at an employee's place of work but can also exist somewhere else – in this case in the wider circumstances of the pandemic. The Court of Appeal agreed with the tribunal; that although the employee did believe that there was a general serious and imminent danger because of COVID-19, he did not believe that there was such a workplace specific danger due to the working conditions.

Why we should care

Although the perceived danger to health and safety does not have to be confined to the workplace, it must exist there (as well as potentially elsewhere in the environment or community). The employee must then reasonably believe that there is a serious and imminent danger in the workplace.

In this series

Employment, pensions & mobility

2023: Looking ahead to employment law changes

18 January 2023

by Kathryn Clapp

Employment, pensions & mobility

Cases to look out for in 2023

18 January 2023

by Shireen Shaikh

Employment, pensions & mobility

EAT: settlement discussions were without prejudice

18 January 2023

by Shireen Shaikh

Employment, pensions & mobility

Hot Topics

18 January 2023

by Kathryn Clapp, Shireen Shaikh

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