All employees (and workers from 31 May 2021) have a statutory right not to be subjected to any detriment or dismissed for refusing to come to work in circumstances where they hold a reasonable belief that they are in ‘serious and imminent danger’.
Many employees are likely to be anxious about returning to the workplace as lockdown restrictions continue to ease, and employers will need to take these concerns into consideration, whilst ensuring they have taken adequate steps to minimise health risks.
The case of Mr Rodgers v Leeds Laser Cutting is one of the first to consider the application of the statutory protection where the employee’s concern relates to the risk of coronavirus infection in the workplace.
Mr Rodgers worked for Leeds Laser Cutting Ltd, and claimed he did not feel safe attending the workplace in the first national lockdown in March 2020. His concerns were largely down to his fears of catching COVID-19, particularly in relation to his child, who has a chronic health condition.
His employer said that appropriate safety measures had been implemented in the workplace, following government guidance at the time, and that his job could not be done from home, therefore arguing that his failure to attend work was not reasonable.
As a result, Mr Rodgers was dismissed in April 2020. At the time of his dismissal, he had less than two years’ continuous employment, so could not bring a claim of ordinary unfair dismissal. He brought a claim in the employment tribunal alleging that he had been automatically unfairly dismissed due to his reasonable belief that there was serious and imminent danger at his workplace.
The ruling – no belief of ‘serious and imminent danger’ in the workplace
The judge dismissed Mr Rodgers’ claim. Whilst recognising that Mr Rodgers had serious and understandable concerns about the risk of catching COVID-19 outside his home, the tribunal did not consider that Mr Rodgers believed there were circumstances of serious and imminent danger in the workplace.
Mr Rodgers did not raise concerns about the safety of the workplace with his employer, and he could have been expected to reasonably avert any dangers in the workplace by following the guidance put in place by his employer, which included socially distancing within the large, open workspace, regularly washing hands and using additional PPE. There had been no need to entirely remove himself from the workplace to avert any danger.
As a result, the judge ruled that Mr Rodgers fears were not related to the workplace, but rather about the general, wider circulation of the virus in society.
The judge confirmed that (s100(1)(d) Employment Rights Act 1996) could be used in relation to concerns about COVID-19, but only if an employee reasonably believes themselves to be in serious and imminent danger in the workplace specifically. For the purposes of this statutory protection, the issue is whether the employee or worker reasonably and genuinely believes they are in serious and imminent danger. Employers should be aware that employees may still be afforded this statutory protection even where the employee or worker was wrong and there was no danger – the question is whether the employee’s or worker’s belief is reasonable.
What does this mean for employers?
This case is a useful decision for employers, demonstrating that tribunals will recognise that employers who have put in place protective measures and followed government guidance cannot be made liable for the actions of one employee. Whilst the claimant’s fear of the circulation of COVID-19 in society could be considered reasonable in this case, his response to this perceived threat, and actions taken as a result were not appropriate.
This decision also suggests that the employer’s duty is limited to safety in the workplace, and the risk of employees’ catching COVID-19 in general does not automatically place employers in breach of their obligations.
There is likely to be an increase in employment tribunal claims relating to various issues which have arisen for employers and employees as a result of the pandemic, and this case demonstrates the importance of ensuring appropriate safety measures are put in place, and following a fair process in considering whether to take action against an employee who is refusing to attend their workplace (especially where the employee has more than two years continuous employment).