The case concerned a claim under sections 100(1)(d) and 100(1)(e) of the Employment Rights Act 1996 (ERA) which provide employees with protection against dismissal in circumstances where they reasonably believe there is a serious and imminent danger. Section 100(1)(d) of the ERA relates to the employee exercising their right to leave or refuse to return to the workplace and section 100(1)(e) of the ERA relates to the employee taking steps to protect themselves (or others) from the danger.
There is no two year service qualifying period required to bring this claim, it is a "day one" right. Mr Rodgers could not claim ordinary unfair dismissal as he did not have the two years' qualifying service.
Although not relevant to this case it is also worth noting that section 44 of the ERA protects employees and workers from suffering a detriment in the above circumstances.
Mr Rodgers started working for the employer on 14 June 2019 as a laser operator. The employer's workspace was large (descriptions varying from half the size of a football pitch to "like a big, big garage") and there were typically five people working on the shop floor. Prior to the first lockdown one of Mr Rodgers' colleagues displayed Covid-19 symptoms and was sent home to isolate. Following the announcement of the first national "lockdown" on 23 March 2020, the employer published an "employee communication" which confirmed that the business would remain open, asked staff to work as normally as possible and stated "we are putting measures in place to allow us to work as normal." The employer's "clear and consistent" evidence that there were already some measures in place was accepted. It was also found that Mr Rodgers could socially distance at work.
On 25 March 2020 Mr Rodgers displayed a slight cough. He subsequently obtained a self-isolation note until 3 April 2020.
On 29 March Mr Rodgers sent a text to his line manager saying:
"unfortunately I have no alternative but to stay off work until the lockdown has eased. I have a child of high risk and he has siclecell (sic) & would be extremely poorly if he got the virus & also a 7 month old baby that we don't know if he has any underlying health problems yet."
His line manager responded by text saying "okay mate, look after yourself". Mr Rodgers was subsequently dismissed about a month later.
The Employment Tribunal found that Mr Rodgers had been fairly dismissed and that he had been unable to establish a reasonable belief in a serious and imminent workplace danger. The Tribunal found that Mr Rodgers' decision to stay away from the workplace was not directly linked to his working conditions. The Tribunal went on to find that Mr Rodgers did not effectively communicate any concerns about his working conditions and that his concerns were linked to the virus in general and the fact that one of his children was vulnerable. Despite his concerns Mr Rodgers had driven a friend to hospital during a period when he should have been self-isolating and had spent a period of time working in a pub. As Mr Rodgers' reasonable belief in serious and imminent danger could not be established, his automatic unfair dismissal claim was unsuccessful. It is worth noting that the Tribunal found inconsistencies in Mr Rodgers' evidence and that at times it was considered "confusing and contradictory".
Mr Rodgers appealed to the Employment Appeal Tribunal ("EAT"), asserting that the Employment Tribunal had erred in law by concluding that "because the claimant’s belief was one of a serious and imminent danger at large, his belief that his workplace presented a serious and imminent danger was not objectively reasonable”.
The EAT dismissed the appeal concluding that the Employment Tribunal had not erred in law in finding that the dismissal was not automatically unfair pursuant to section 100(1)(d) of the ERA.
During the EAT hearing it was agreed that the case should be narrowed to only consider section 100(1)(d) of the ERA (the employee exercising their right to leave to avert the risk). This was on the basis that the only action Mr Rodgers took was to leave the workplace and as such section 100(1)(e) did not apply.
The EAT noted that the Tribunal had made a number of findings of fact regarding the extensive steps the employer had taken to avert the danger of the virus in the workplace. The EAT held that the Employment Tribunal legitimately concluded that Mr Rodgers did not hold a reasonable belief that there were serious and imminent circumstances of danger that prevented him from returning to work. The EAT stated that on a fair reading of the judgment the Employment Tribunal concluded that Mr Rodgers considered that his workplace constituted no greater a risk than there was at large.
The EAT held that Mr Rodgers could reasonably have taken steps to avoid the dangers, even having regard to his concerns about the health of his children. He could have taken similar steps both at large and at work – for example wearing a mask, social distancing, sanitising and washing hands.
Mr Rodgers appealed to the Court of Appeal.
Court of Appeal
The Court of Appeal dismissed the appeal, concluding that the Employment Tribunal Judge had not misconstrued section 100(1)(d) of the ERA by confining her consideration to dangers that were specific to the workplace. The Employment Tribunal Judge had made an important distinction:
"Her [the Judge's] finding that the Claimant did not believe that there was a serious and imminent danger at the workplace is based on her finding that, although he did believe that there was a serious and imminent danger at large, he did not believe that there was such a danger specific to the workplace."
One of the challenges made by Mr Rodgers was that this distinction involved a proposition of law to the effect that a perceived danger must be "specific to the workplace". However, the Court of Appeal found that this distinction was not made on the proposition of law but on a factual finding about what Mr Rodgers thought was the risk of infection at the workplace, as opposed to what it might be elsewhere in the community. The Court of Appeal went on to clarify that had such a proposition of law been made then that would have been an error of law. The Court of Appeal confirmed its view that there is nothing in the language of section 100(1)(d) of the ERA that requires that the danger should be exclusive to the workplace. The key requirement under the section is that the employee reasonably believes that there is a serious and imminent danger in the workplace. It is irrelevant that the same danger may be present outside the workplace – for example, on the bus or in the supermarket.
This case provides a useful analysis of section 100(1)(d) of the ERA. Despite some sympathy being shown to Mr Rodgers the legal test could not be met. During the course of the litigation it was stated by the EAT that the Coronavirus could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent.
We have seen a number of challenges under section 100 of the ERA and we expect to see more. Employers can take some comfort from the outcome of this case in that where a considered and measured approach has been taken, in line with government guidance, the employer can minimise the risk of successful claims against them.
If you need any assistance with regard to the issues raised in this update please do not hesitate to get in touch.