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Automatic Unfair Dismissal and COVID-19

on Friday, 13 May 2022.

The Employment Appeal Tribunal (EAT) has confirmed that an employee who refused to attend work because of concerns about the impact of COVID-19 on his vulnerable children was not automatically unfairly dismissed.

However, the decision also highlights that in different circumstances, another claimant could have been automatically unfairly dismissed for refusing to attend work. It is important to assess each case on its own facts, taking into account the wording of the underlying legislation.

Remaining Off Work Due to Having Vulnerable Children

In the case of Rodgers v Leeds Laser Cutting Ltd, Mr Rodgers started work as a laser operator on 14 June 2019. The first COVID-19 lockdown was announced on 23 March 2020 and his workplace was permitted to remain open. Mr Rodgers worked as normal until 27 March 2020, although he developed a slight cough on 25 March 2020 which he attributed to dust in the workplace.

On 29 March 2020 Mr Rodgers contacted his employer stating he would need to remain off work "until the lockdown has eased" due to his vulnerable children who could become very ill if they caught COVID-19. Mr Rodgers did not then get back in touch with his employer until 24 April 2020 - saying he understood he had been sacked for self-isolating, and asked for his P45 to be sent as soon as possible.

The Tribunal did not make any findings of fact in respect of why Mr Rodgers was dismissed.

What Was the Basis of the Automatic Unfair Dismissal Claim?

Mr Rodgers initially based his claim on two grounds - sections 100(1)(d) and (e) Employment Rights Act 1996. These subsections state that a dismissal will be automatically unfair in either of the following circumstances:

  • in circumstances of "danger which the employee reasonably believes 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" (section 100(1)(d))
  • in circumstances of "danger which the employee reasonably believed to be serious and imminent, he took… appropriate steps to protect himself…from the danger" (section 100(1)(e))

The Employment Tribunal rejected Mr Rodgers' claim. He appealed to the EAT.

Did Refusing to Return to the Workplace Amount to Taking 'Appropriate Steps'?

The case concerned Mr Rodgers leaving (or refusing to return) to his workplace. At the Employment Tribunal, the parties agreed that this action could also amount to an 'appropriate step' under section 100(1)(e).

The EAT encouraged the parties to reconsider this for several reasons. In particular, section 100(1)(d) requires the employee "not reasonably have been expected to avert" the danger, in order for the claim to succeed. A claim under section 100(1)(e) does not require the claimant to clear this additional hurdle. It therefore seemed illogical that the act of refusing to return to the workplace would require this additional justification under section 100(1)(d), but not (e).

At the EAT's suggestion, the parties agreed to exclude section 100(1)(e) from Mr Rodger's appeal. The EAT considered section 100(1)(d) only.

Was the Appeal Successful?

The EAT rejected the appeal and upheld the Tribunal's decision. It concluded that Mr Rodgers' concerns about the virus were general and not directly attributable to his workplace. He had conducted himself in a way that did not support his argument that there were circumstances of danger which he believed were serious and imminent. For example, he did not wear a face mask, left his home during a period of self-isolation, and worked in a pub during lockdown. The EAT also held the Tribunal was entitled to find that Mr Rodgers could reasonably have taken steps to avoid the danger posed by the virus, such as wearing a mask, socially distancing, sanitising and washing his hands. On this basis section 100(1)(d) was not engaged.

Key Takeaways for Employers

It is worth noting that Mr Rodgers had under two years' service when he was dismissed, meaning he was not eligible to bring a claim for ordinary unfair dismissal. Claims for automatic unfair dismissal do not require a minimum of two years' service.

This case highlights the individual circumstances that will be taken into account in this type of automatic unfair dismissal claim. Whilst the claimant was unsuccessful in this instance, a different claimant and set of facts could have achieved a different result. The case also highlights that both the employee's own beliefs about the danger they find themselves in, as well as what action they might have taken to avert the danger, will be taken into account in this type of claim.

 For more information employment in relation to COVID-19, please contact Gareth Edwards in our Employment team on 07899 915692, or complete the form below.

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