Just as 2022 ended, the World Health Organisation informed us of the emergence of Covid19 in China once again, while in the UK we are still dealing with the implications of the first lockdown.
Covid 19 and the lockdowns that followed saw many people opting to isolate either due to personal vulnerabilities or due to the fear of infecting their family.
In the case of Rogers v Leeds Laser Cutting, the Claimant, who had been employed by the Respondent for a short period of time prior to the first lockdown, was dismissed after refusing to work because he was concerned about the risk of infections.
Despite the lockdown rules imposed by the Government at the time, the Respondent continued to operate, as they were producing materials for use in the NHS and this was done in line with social distancing rules and the provision of safety precautions such as masks.
The Claimant was off due to a cough as advised by NHS 111. However, did not return to work when the self-isolation period expired and consequently was dismissed from work. Although his concerns were that he may infect his vulnerable children, he breached the self-isolation guidelines and did not take any steps to avert the danger he alleged or raise concerns of the same with his manager before refusing to continue to work.
The Claimant claimed that he had been unfairly dismissed. However, as he had been employed for less than 2 years, he could not bring a claim for unfair dismissal. Alternatively, he pursued his claim as automatic unfair dismissal under s100 Employment Rights Act 1996, where he believed there was a “serious and imminent” threat to his health and safety.
Taking all considerations into account the Tribunal dismissed the claim as the Claimant’s concern was in relation to Covid 19 in general as opposed to the risk it posed in his workplace.
The Claimant appealed this decision, and the case went to the Court of Appeal, where they set out five questions that should be used in cases relating to s100(1)(d)
- Did the employee believe there were circumstances of serious and imminent danger at the workplace? If so:
- Was that belief reasonable? If so:
- Could they reasonably have averted that danger? If so:
- Did they leave, 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?
Ultimately, the Court of Appeal held that the Tribunal was correct in saying that an employee who failed to attend work during the Covid pandemic was not automatically unfairly dismissed for doing so in the face of serious and imminent danger.
This will certainly provide a strong basis for any further claims brought under s.100 provided that the employer took reasonable steps to reduce the risk of infection in the workplace.
If you would like to speak to a member of our team about any of our services or if you have any concerns about Covid 19 absences in your workplace please get in touch at Jodie.email@example.com.