Health and safety dismissals: Lessons from the pandemic

UK law regarding unfair dismissal

In summary, under Section 100 of the Employment Rights Act 1996 (ERA) an employee will have been automatically unfairly dismissed if the reason for their dismissal is that:

1. 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 refused to return to his place of work; or
2. in circumstances of danger which the employee reasonably believed to be serious and imminent, he took appropriate steps to protect himself or other persons from the danger.

To succeed in a claim, the danger does not need to have been generated by the workplace itself. Further, the harm that might be caused by the danger does not need to occur at the workplace or affect the employer’s staff.

The facts of the case

Mr Rodgers was employed as a laser cutter for Leeds Laser Cutting. On 24 March 2020 (just after the first lockdown was announced), the employer informed staff that steps were being taken to protect them from Covid-19 and asked them to work as normal. In accordance with government guidance, Employees had been advised of the need for social distancing and hand washing. Mr Rodgers was able to socially distance in his role.

On 29 March 2020 Mr Rodgers informed his employer that he would be staying away from work until the lockdown had eased, as he needed to protect his two children who suffered from sickle-cell anaemia.

Mr Rodgers was dismissed for his refusal to attend work and he brought a claim for automatic unfair dismissal, alleging he had been dismissed because he had taken steps to protect his health and safety (in the circumstances described at 1 and 2 above).

Tribunal decision

The Tribunal decided that Mr Rodgers had not demonstrated a reasonable belief that there was any serious and imminent danger directly attributable to the workplace. He was in fact concerned about the pandemic more generally.

Mr Rodgers’ conduct also did not support his contention that he had a reasonable belief in serious and imminent danger, as he had not taken steps to avoid any danger or notified his manager that he had any concerns. The Tribunal also concluded that Mr Rodgers could reasonably have taken steps to avert the danger in question in any event.

Mr Rodgers appealed to the Employment Appeal Tribunal (EAT).

The EAT decision

The EAT dismissed Mr Rodgers’ appeal. The EAT acknowledged that it was possible that an employee could reasonably believe that there were serious and imminent circumstances of danger outside of the workplace which meant they could not attend work. However, in this case, several factors suggested Mr Rodgers did not hold such a belief, including that he: did not request a mask (despite masks being available); was able to maintain social distancing at work; and had worked in a pub during the pandemic.

The EAT also agreed that Mr Rodgers could reasonably have taken steps to avert the danger, both at work and elsewhere, by: wearing a mask, socially distancing, and sanitising his hands.

Lessons for employers

The EAT’s reasoning provides some general guidance regarding health and safety dismissals which employers would be well advised to consider, as follows:

• Even though Mr Rogers lost his claim, section 100 of the ERA can apply to a widespread danger (such as a pandemic), as well as to danger that originates at work.
• It is not sufficient for an employee to have legitimate concerns about danger to their family’s health. The employee must have a reasonable belief in serious and imminent danger that prevents them attending work.
• An employee’s conduct in their personal life may be relevant to determining whether they held a reasonable belief that attending the workplace amounted to a serious and imminent danger.
• It may be hard to demonstrate the necessary reasonable belief in danger if the employer has followed public health advice.