An Employment Tribunal has recently ruled that an employee had been fairly dismissed when he failed to attend his workplace due to Covid-19 concerns.
Section 100 of the Employment Rights Act 1996 (ERA) provides employees with protection from dismissal for exercising their right to leave the workplace where they have a ‘reasonable belief’ that being in the workplace puts them in ‘serious and imminent’ danger. Claims under Section 100 of the ERA do not require 2 years’ service.
The employee, Mr Rogers, who had been employed by Leeds Laser Cutting Ltd for less than two years, was part of a team of five employees working in a large warehouse. In March 2020, after a colleague had displayed Covid-19 symptoms, Mr Rogers contacted his manager to say that he would be staying away from his workplace “until the lockdown has eased”. Mr Rogers said he was concerned of the risks that Covid-19 posed to his vulnerable children, who suffered with sickle-cell anaemia. A month later, Mr Rogers was dismissed.
Mr Rogers subsequently brought a claim for automatic unfair dismissal under section 100 of the ERA.
The Employment Tribunal rejected the Claimant’s claim and made the following observations:
- Although Mr Rodgers stated he was concerned about the risks of Covid-19, he had also breached the self-isolation guidance when he drove a friend to hospital the day after he informed his employer that he would not be returning to work. This therefore undermined his assertion that he was concerned about the risk of Covid-19 to his children;
- The Claimant’s message to his manager did not raise any concerns relating to workplace danger and he could not demonstrate there had been any such danger;
- The Claimant did not take any steps to raise concerns with his manager before he excused himself from the workplace; and
- The employer had taken steps towards employee health and safety in view of the pandemic, including carrying out a risk assessment and following the government guidance on social distance and hand washing. It also provided masks to its employees.
The Tribunal held that a reasonable belief in serious and imminent danger had to be judged on when the relevant acts took place, and what was known and when. On the facts, the Tribunal did not accept that the Claimant had established the required belief that he was at serious and imminent danger in the workplace. Further, the Tribunal observed that Covid-19 could not be treated as automatically creating circumstances of serious and imminent danger as otherwise an employee would be able to rely on section 100 to stay away from the workplace as a result of the pandemic in general. This had the potential to give rise to a disproportionate number of claims.
What can employers take from this?
Though this decision is not binding since it is only at Employment Tribunal level and, importantly, relied on the specific facts of the case, it nonetheless highlights the importance of implementing and enforcing Covid-19 health and safety measures. Whether or not the ‘serious and imminent danger’ threshold is passed has to take account of the safety precautions that the employer has taken. In this sense employers can mitigate the risk behind employees being able to establish that the workplace is dangerous.
For more information on the issues mentioned within this blog, please contact a member of the Employment Team.