Employee not automatically unfairly dismissed despite claiming a belief of serious and imminent danger in the workplace

In the recent Employment Tribunal (‘ET’) case of Rodgers v Leeds Laser Cutting Limited, an employee was dismissed for being absent at work. The employee sought to rely on s100 Employment Rights Act 1996 (ERA) namely that there was a reasonable belief of serious and imminent danger, so he could not be dismissed because of the actions taken. It was held that the specific facts of the case had to be considered and in this case the employee was not automatically unfairly dismissed on the grounds of s100.

Case Facts

The employee in this case was employed as a Laser Operator with the Respondent. At the start of the first lockdown in March 2020, the Respondent business was still operating in person. The Respondent had put a number of measures in place to ensure the workplace was safe to work in. One of the Claimant’s colleagues had developed a cough within this time and approximately 11 days later the Claimant developed a cough and connected this to working with the colleague previously. He left work at normal time on this day. Two days later the Claimant texted an employee of the Respondent saying he would not be in work until the lockdown had eased as he had vulnerable children. Approximately a month later, the Claimant was dismissed.

The Claimant brought a case of unfair dismissal under s94 ERA and automatic unfair dismissal on the grounds of s100 ERA.

Decision

For general unfair dismissal, the Claimant did not have the requisite two years’ service so this claim was struck out.

His automatic unfair dismissal claim under s100 for a health and safety reason did not require two years’ service, instead it was considered on the facts. His claim of automatic unfair dismissal on these grounds was not upheld. The judge considered the test of s100 as follows:

Did the claimant reasonably believe there were circumstances of serious and imminent danger?

The ET considered that this needed to be dealt with both subjectively and objectively.

  1. Did the Claimant believe there were circumstances of serious and imminent danger?
    On the facts the judge did not consider that the Claimant held a believe of serious and imminent danger in the workplace. Though, the ET accepted the Claimant’s concerns over his family, the Claimant’s communication with the Respondent did not elude to the Claimant’s concern with the pandemic to be related to the workplace. The Claimant had said he believed that social distancing was possible within the workplace, and in any event, the Claimant had not stated that the reason he was not coming into work was because of the working conditions. The way the Claimant had conducted himself also was contradictory in nature and he had driven his friend to the hospital despite being required to self-isolate by the NHS.
  2. Was that belief objectively reasonable?  
    The size of the workplace and the measures put in place by the Respondent were considered by the ET and it was held that there was a reduced risk of Covid-19 and that it was not difficult to socially distance within the workplace, by the Claimant’s own account.

Could the Claimant reasonably have been expected to avert the dangers?

The ET held that the Claimant could reasonably have been expected to avert the dangers if he had followed the measures in place within the workplace, namely, socially distancing wearing protective equipment and washing hands regularly. The ET also held that were there any tasks asked of him where socially distancing was not possibly, it was clear that the Claimant could have raised his concerns and/or reasonably refused to do the tasks.

Did he take appropriate steps to protect himself or other persons from the danger?

The Claimant did have concerns about his family and their vulnerability, which the ET accepted. However, the Claimant chose to absent himself from work despite the fact he could socially distance in work, and in any event in absence of any complaint raised with the Respondent about the working conditions and safety.

Did he take appropriate steps to communicate these circumstances to his employer by appropriate means?

Though, the Claimant claimed there were some conversations had around him leaving the workplace and not returning, the Claimant’s evidence was considered vague. The written communication that was undertaken with the Respondent, did not reference any concerns of danger around the workplace. The ET held that they believed the Claimant’s fear was with the pandemic overall, not specifically with the workplace. With all of this in mind, the ET held that the Respondent could not have known that the Claimant’s absence was due to the health and safety of the workplace.

Implications

Communication around any safety concerns in the workplace is key. Employers should undertake conversations with any employees who raise concerns around coming into work and health and safety of the workplace. It is important to document each conversation and understand that each individual case may be different. As always, we recommend robust risk assessments to be in place generally, and also individually where appropriate for those concerned.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

The Legal 500 - The Clients Guide to Law Firms

UK Chambers logo

Best Companies - One to watch logo

Cyber Essentials Certification Logo