We have been following the case of Darren Rodgers who was dismissed by his employer, Leeds Laser Cutting Limited, in April 2020.
Throughout this claim, Mr Rodgers has maintained that his dismissal was automatically unfair, having been dismissed for refusing to attend work during the Covid-19 pandemic.
The case reached the Court of Appeal late last year and the decision has recently been published which upholds the fairness of Mr Rodgers’s dismissal.
In this article, Employment Solicitor Chris Dobbs outlines what led to the court of appeal’s verdict and discusses what it means for employers regarding similar dismissals.
Case background
Mr Rodgers worked in a large warehouse with four colleagues. The company brought in an external specialist to carry out a risk assessment in light of the pandemic.
They introduced various recommendations from the report, including social distancing and staggered arrival and lunch times for the staff.
Mr Rodgers contacted his manager to say he had no choice but to exclude himself from the workplace. In his email, he noted he had a child with sickle cell disease and other underlying health problems.
Ultimately, the employer dismissed him.
What claims were brought against the employer?
Mr Rodgers relied on s100(1)(d) and (e) of the Employment Rights Act 1996. These sections of the legislation prohibit dismissals which are for action taken by an employee to mitigate a “serious and imminent” risk of danger to themselves or others up to and including refusing to attend the workplace.
Both the original Employment Tribunal and the Employment Appeal Tribunal found against Mr Rodgers.
The broad reasoning was that his concerns about Covid-19 security were not specific to the workplace but rather directed to the pandemic at large. His belief that the workplace specifically was therefore a source of serious and imminent danger was not reasonable.
What was the verdict at the Court of Appeal?
The Court of Appeal confirmed that the original Tribunal judgement was “carefully structured and reasoned” and that while the Claimant “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”.
Does a ‘serious and imminent risk’ need to be in the workplace?
Specifically, the Court of Appeal was asked to consider whether the original Employment Judge had been wrong in law to focus on the need for there to be a serious and imminent risk in the workplace itself.
Both the EAT and the Court of Appeal rejected this position as it was not the position the original judge had taken, her discussion on this point had been in relation to the Claimant’s belief about the risk of infection in the workplace.
It remains the case that the serious and imminent danger need not be in the workplace itself.
What should employers take away from this case?
Although Mr Rodgers’s claim has now failed at senior appellate level, the Court did make some important comments about the nature of these claims which employers should note for the future:
- The legislation is clear: employees should not be at risk of dismissal if they refuse to attend work in order to avoid a genuine danger (whether at work or not).
- It is sufficient for an employee to have a reasonable belief in both the existence of the danger as well as its severity and immediacy. The danger does not have to be an actual one.
Although rare, the existence of these claims did come to light during the pandemic and raised a new awareness of health and safety related claims.
Beyond extreme situations, such as during Covid-19, they can arise in specific sectors or circumstances with individuals and may overlap with disability or pregnancy-related claims.
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Employment & HR Solicitors
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