COVID-19 and unfair dismissal

A recent employment tribunal claim has raised some interesting points regarding an employer’s duty to ensure a safe working environment in the world of COVID-19 and the circumstances of where it may be liable for an automatically unfair dismissal claim.

Mr D Rodgers v Leeds Laser Cutting Limited

Mr Rodgers, the claimant, was employed at Leeds Laser Cutting Limited as a laser operator. He did not have two years qualifying service at the time of his dismissal.

When the first lockdown was announced in March 2020, his employer wrote to all staff stating that measures were being put in place to ensure their safety and that business would continue with staff being asked to work as normal. A risk assessment was carried out by an external contractor in mid-March 2020, with various risks associated with COVID-19 identified and advice on how to reduce those risks.

Evidence showed that social distancing was possible with the factory being large and well-ventilated. Measures advised from the risk assessment included staggered start and end times as well as lunch breaks. Additionally, cleaning work surfaces and handwashing.

On 27 March 2020, Mr Rodgers advised his employer that he would not be returning to work. On 29 March 2020, he wrote to his employer as follows:

‘unfortunately I have no alternative but to stay off work until the lockdown has eased. I have a child of high risk as 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’.

The respondent replied saying ‘ok mate, look after yourselves’.

Mr Rodgers subsequently began a period of self-isolation and made no further contact with his employer. Neither did the employer contact Mr Rodgers. However, he was dismissed in April 2020 and he sought to present a claim of automatically unfair dismissal, for which there is no need to have two years qualifying service.

The claim

Mr Rodgers argued that his dismissal was automatically unfair under s100 of the Employment Rights Act 1996 which states:

Section 100 health and safety cases:

‘(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that –

• ‘…(d) 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, or
• ‘(e) 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.’

Section 100 also provides:

‘(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

‘(3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them.’

Decision

The employment tribunal claim was dismissed. The tribunal concluded that Mr Rodgers had not remained home by reason of the specific and imminent dangers within his workplace, because he had not mentioned any, but rather because of the dangers in society as a whole at the time.

To succeed, his claim would have to have shown that the workplace dangers were his specific concerns.

Even if Mr Rodgers had raised specific concerns, the employment tribunal concluded that the actions and health and safety steps taken by his employer to protect staff from the spread of COVID-19 would have meant Mr Rodger’s belief in a ‘serious and imminent’ danger would have been unreasonable in any event.

Summary

While this is only an employment tribunal case, it is one of the first claims to be reported in this era of COVID-19 where a staff member has sought to rely on the health and safety automatically unfair dismissal principles to present a claim.

It is important to remember that staff with two years qualifying service will be eligible to present normal unfair dismissal claims. To avoid such claims succeeding, the requirements are to have a fair reason for the dismissal and to follow a reasonable and fair procedure.

Adhering to government guidance in terms of risk assessments and health and safety will go a long way to ensuring schools and academies can demonstrate a defence to arguments of the workplace presenting a serious and imminent danger to staff.