If you ask any employment lawyer what it was like dealing with legislation changes over Covid (and they’re being very honest) they’ll probably tell you that no one really knew what they were doing.  The rapid change to employment law (and life!) as we knew it from March 2020 was – to use the word of the year – unprecedented.  I, and many others in my position, were often advising on the most ‘sensible’ course of action with the caveat “we can’t know for certain unless and until test cases reach the tribunals, which could be some time”.

Fast forward to 2022, and whilst the Government have lifted most restrictions and for many Covid feels like a distant memory, we are only now just starting to see the test cases making their way into legal news.

One such case is Rodgers v Leeds Laser Cutting Ltd which has reached the Employment Appeals Tribunal (EAT).

Facts of The Case

In this case, Mr Rodgers had been working for his employer as a laser technician since June 2019.  His work involved him being in a large warehouse where there were usually only 5 employees on site at a time. 

Mr Rodgers was unable to work from home so, at the beginning of the pandemic, the Respondent employed a company to carry out a professional risk assessment which recommended a number of adjustments including social distancing, sanitising surfaces, and staggering start/finish/lunch/break times. Most of these recommendations were already in operation before the pandemic.

On Sunday 29 March 2020, Mr Rodgers sent an email to his line manager saying he had no alternative but to stay off work until the pandemic eased.  His reasoning was that he had a child who was extremely vulnerable, with sickle cell disease, and a young baby who may have underlying health conditions.

Mr Rodgers then obtained a self-isolation note from NHS 111 covering 28 March to 3 April 2020.  However despite telling his employer he was isolating, he drove a friend to the hospital by car on 30 March, and proceeded to take a job working in a pub during lockdown.

Mr Rodgers did not make any further attempts to contact the respondent after his email of 29 March and they did not contact him either, merely sending him his P45 by post on 24 April, terminating his employment.

Mr Rodgers then lodged a claim for automatic unfair dismissal on health and safety grounds, citing S100(1)(d) of the Employment Rights Act 1996. 

S110(1)(d) states that an employee is automatically unfairly dismissed if the reason for dismissal is that ‘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, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work’.

The Tribunal’s Decision

The employment tribunal decided that the case did not fall into the scope of S100(1)(d) and that Mr Rodgers was not unfairly dismissed.  Mr Rodgers may have had concerns about Covid, but these were general concerns (about the safety of his children) and not specific to his workplace. Mr Rodgers also did not refuse to attend work due to the conditions of that environment, but rather refused to attend work until lockdown was over.  His case failed and Mr Rodgers appealed to the EAT.

The EAT’s Decision

The EAT supported the judgment of the first tribunal.  They stated:

• The Tribunal had correctly concluded that Coronavirus did amount to a danger at work and elsewhere;

• However S100(1)(d) requires that the employee reasonably considers that danger to be “serious and imminent”;

• The Tribunal determined that Mr Rodgers did not reasonably consider that his workplace constituted any greater danger than the world at large, or that the danger prevented him from attending his workplace.  Mr Rodgers’ concerns for his children, however genuine, did not necessarily equate to a belief that his workplace presented a serious and imminent danger;

• The Tribunal took into account the circumstances of the workplace which countered Mr Rodgers’ suggestion that there was particular danger, including the open space, the small number of people working, that he was able to social distance in work, and that despite masks being available to him, he had not ask for one; and

• The Tribunal further found that Mr Rodgers’ action in taking a friend to the hospital and working in a pub contradicted any alleged concerns he suggested he had about his workplace.

Conclusion

It is interesting that we are now seeing these sorts of decisions coming through the Tribunals, and this case may assist employers dealing with cases where employees have attempted to use Covid as an excuse not to work.

However, as with all Tribunal claims, it must be remembered that each case turns on its own facts.  The claim involved a workplace which had taken all reasonable measures to avert the danger and an employee whose actions did not support his claim.  The outcome may have been very different, for example, in the case of a vulnerable employee who fully isolated during lockdown, and refused to attend a workplace where no Covid safety measures had been put in place.

Should you have any queries about Covid or other health and safety dismissals, Tribunal procedure, or require assistance with an Employment Tribunal claim, please contact Charlotte Braham on 01494 893529