Court of Appeal rejects Covid-19 unfair dismissal claim

The dispute arose after Darren Rodgers was dismissed from his job at Leeds Laser Cutting Ltd. Shortly after the start of the first Covid-19 lockdown, Rodgers had texted his manager to say that he would be staying away from work because he was concerned about the risk of infection. Four weeks later, on 26 April, Rodger was dismissed. In July, he commenced legal proceedings in the Employment Tribunal with a claim for “automatic unfair dismissal” under section 100 of the 1996 Employment Rights Act.

According to section 100(1)(e), the dismissal of an employee is deemed unfair if, “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert”, they left, proposed to leave, or refused to return to their place of work or any dangerous part of their place of work while the danger persisted. Section 100(1)(d) adds that a dismissal is deemed unfair if “in circumstances of danger which 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."

When Rodgers’ claim was dismissed by the Employment Tribunal, he appealed to the Employment Appeal Tribunal, abandoning his case under section 100(1)(e) and relying solely on subsection (1)(d). The appeal was dismissed, with the Employment Appeal Tribunal holding that Rodgers “did not reasonably believe that there were circumstances of danger that were serious and imminent, at work or at large, that prevented him returning to his place of work.”

At a hearing of the Court of Appeal in December, Lord Justice Underhill agreed with the lower courts’ rulings, but rejected the argument made by Leeds Laser Cutting Ltd that section 100(1)(d) did not apply to cases involving the risk of employees infecting each other with a disease. He held that, while the language of the section presupposes an imminent danger in a workplace caused by some problem with the premises or the equipment, there was no reason why it did not also apply to less obvious dangers, such as the spread of infection.

Handing down the decision of the court, Lord Justice Underhill added that the danger mentioned in section 100(1)(d) did not have to be exclusive to the workplace. “All that matters is that the employee reasonably believes that there is a serious and imminent danger in the workplace. If that is the case, it is the policy of the statute that they should be protected from dismissal if they absent themselves in order to avoid that danger. It is immaterial that the same danger may be present outside the workplace – for example, on the bus or in the supermarket,” he said.

Kevin Bridges of Pinsent Masons said: “The Health and Safety at Work etc Act 1974 requires employers to ensure the health, safety and welfare at work of employees and others, insofar as reasonably practicable. Risks to be assessed and mitigated as part of that duty extend not only to physical hazards present in the workplace but also to other potential hazards, including illness, both physical and mental.”

“During the Covid-19 pandemic, the Health and Safety Executive underlined this duty but requiring employers to expressly consider the dangers posed by Covid-19 in their risk assessment. Employers should also remember that there can be no one size fits all when it comes to risk assessment to comply with health and safety obligations; they must take into account individual characteristics which may lead to increased vulnerability, and put in place suitable mitigations,” he added.