UK Labor Appeal Tribunal upholds dismissal of employee who refused to work over COVID safety concerns | Smaller

In Rodgers v Leeds Laser Cutting LtdThe Employment Appeal Tribunal (EAT) has upheld a decision that the dismissal of an employee who refused to work due to safety concerns related to COVID-19 was not unfair.

The nationwide lockdown was announced on March 23, 2020. At that time, Mr Rodgers (the claimant) worked in the shop floor of a laser cutting factory with around five other employees. The company said it intends to put measures in place (such as mask availability, social distancing, and staggered start and end times) to allow them to continue as normal.

Mr Rodgers had two young children, one of whom had sickle cell disease, and did not return to work after finishing his shift on March 27, 2020, telling the company he would not return until the end of the confinement. , referring to his children. There was no further contact between Mr. Rodgers and the company until Mr. Rodgers was fired. Mr. Rodgers filed a claim for automatic wrongful termination under Section 100(1)(d) and (e) of the Employment Rights Act (ERA).

Section 100(1) makes a dismissal automatically unfair when:

  • in circumstances of danger which the employee reasonably believed to be grave and imminent and could not reasonably be expected to be avoided, he left or offered to leave or refused to return to his place of employment ( s100(1)(d)); Where
  • in circumstances of danger which the employee reasonably believed to be grave and imminent, he took (or proposed to take) appropriate action to protect himself or others from danger (s100(1)(e)).

It should be noted that Mr. Rodgers did not have the required period of service to file a claim of wrongful termination – claims under Section 100(1) are available regardless of the employee’s period of service .

Decision of the Labor Court

Although the ET admitted that Mr. Rodgers had concerns about the COVID-19 pandemic, he did not reasonably believe that there were circumstances of serious imminent danger, and the application was therefore dismissed. The ET found that although the COVID-19 pandemic had been described as a “serious and imminent threat to public health” by the Secretary of State, this in itself did not meet the requirements of the legal test, and s if required to do so, it would allow any employee to refuse to work based on the existence of the virus.

Mr. Rodgers appealed.

Labor Appeal Tribunal

On appeal, the EAT determined that Section 100(1)(e) was not relevant to this claim (reasoning that a claim cannot be covered by both Section 100(1) )(d) and (e)), but considered the following issues looking at the requirements of s100(1)(d):​

  1. Were there dangerous circumstances?
  2. Did the employee believe that the circumstances of the danger were:
    1. serious, and
    2. imminent?
  3. Was the employee’s belief that the circumstances of the danger were serious and imminent reasonable?
  4. Couldn’t the employee have been reasonably expected to avoid the grave and imminent circumstances of danger?
  5. Did the employee leave, did he offer to leave (while the danger continued) or did he refuse to return to his place of work or any dangerous part of his place of work?
  6. Was this the reason, or the main reason, for the employee’s dismissal?

The EAT acknowledged that there was some danger caused by the COVID-19 pandemic and that Mr. Rodgers was concerned about the COVID-19 pandemic as a whole, but was not specifically concerned about hazards in the workplace. In reaching this decision, the EAT considered the following factors (among others):

  • Safety measures were in place in the factory (including provision of masks and social distancing);
  • Mr. Rodgers had not raised his concerns with the company;
  • Due to the size of the factory and the small number of employees, it was possible to socially distance;
  • Mr Rodgers had worked in a pub during the lockdown; and
  • Mr Rodgers had taken someone to hospital while self-isolating.

Honorary Judge James Tayler said that “[t]he fact that the claimant had genuine concerns about the coronavirus pandemic, and in particular about the safety of his children, did not mean that he necessarily had an honest belief that serious and dangerous circumstances existed. impending circumstances, at work or elsewhere, which prevented him from returning to work.

In addition, the EAT confirmed that Mr Rodgers might have been expected to avoid the risk by taking measures such as mask-wearing, hand sanitizing and social distancing.

This decision is encouraging for employers who have taken reasonable steps to mitigate the risk of COVID-19, as it will clearly strengthen any defense against claims under Section 100(1)(d) or (e).

However, both ET and EAT conceded that the COVID-19 pandemic could, in principle, give rise to circumstances of danger that an employee could reasonably consider serious and imminent. Therefore, we may still see successful claims in this area on different facts.

*Hannah Drury is a legal assistant at GQ|Littler.

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