Refusing to work because of Covid? A dismissal for doing so will not necessarily be automatically unfair.
In this article, PLP employment barrister Roger Quickfall considers whether a dismissal for a refusal to work for Covid reasons is automatically unfair following the recent case of Rodgers v Leeds Laser Cutting, the first Court of Appeal decision on Covid-related automatically unfair health and safety dismissals.
Shortly before Christmas, while many employment lawyers were distracted from their busy practices by the search for last-minute presents and the refusal of tree lights to work, former President of the EAT and now Vice-President of the Civil Division of the Court of Appeal, Lord Justice Underhill, was busy handing down the first CA decision considering Covid-related automatically unfair health and safety dismissals: Darren Rodgers v Leeds Laser Cutting Ltd  EWCA Civ. 1659. As ever, in so doing, he provided helpful guidance as to the approach to be taken to such cases.
From 14/6/19, Mr Rodgers (“C”) was a laser cutting machine operator with 9 months’ service when the first Covid lockdown was announced. He worked in a large warehouse-type space which was well ventilated and about half the size of a football pitch. Typically, he worked there with no more than four colleagues.
On 14/2/20, the Secretary of State for Health and Social Care declared that Covid was a “serious and imminent threat to public health”.
On Monday 23/3/20, the first national lockdown was announced. Those unable to work from home, such as machine operators like C, could leave home for work. The same day, an external professional carried out a Covid risk assessment at C’s workplace on behalf of C’s employer (“R”) which resulted in R giving its employees recommendations regarding hand washing, face covering and social distancing.
The size of C’s workplace and the small number of employees working there meant that C could socially distance for the majority of his role. Face masks were supplied. Colleagues were encouraged to wash their hands regularly, wear face masks and socially distance. They were also encouraged not to congregate during breaks and to stagger clock-out times, but, to the frustration of management, these latter two recommendations tended to be ignored
On Tuesday 24/3/20, R announced it would remain open fabricating materials for the NHS. C continued to work for the remainder of that week without objection and without raising any Covid or other health and safety concerns to R. By Friday 27/3/20, C had not formed any intention not to return to work the following week.
On Saturday 28/3/20, C phoned NHS 111, reported symptoms of Coronavirus and was asked to isolate for a week.
On Sunday 29/3/20, C sent a text to his manager stating that he had no alternative but to stay off work until the lockdown had eased. He mentioned his two sons. One was aged 5 years with sickle cell anaemia – a condition giving rise to a high degree of vulnerability from Covid. C believed his son would be extremely poorly if he contracted Covid.
C’s other son was aged 7 months and it was unknown whether he had an underlying health condition putting him at high risk from Covid. C did not mention the request by NHS 111 to isolate, nor that he may have any symptoms of Covid, nor whether he had any Covid concerns relating to work. C’s manager replied: “ok mate, look after yourselves”. The same day, C’s friend and colleague broke his leg.
On Monday 30/3/20, C took his friend with the broken leg to hospital by car, despite having been told to isolate. Both wore masks. C’s friend sat in the back. C did not accompany his friend into the hospital itself. C did not attend work after 27/3/20, he did not contact work after 29/3/20.
A month later, on 24/4/20, C texted his manager alleging he had been sacked for self-isolating. On 26/4/20, C was sent his P45 and dismissed.
The employment tribunal found as a fact that C did not believe there was a serious and imminent danger caused by Covid at work. C’s decision to stay off work was not directly linked to his working conditions; he did not feel seriously at risk at work. Rather, C’s decision to stay off work related to his concerns about the virus in general in the community at large and his vulnerable young children.
C did not have the two years’ service necessary for a claim of ‘ordinary’ unfair dismissal. He claimed in the employment tribunal that his dismissal was automatically unfair pursuant to sections 100(1)(d) and/or (e) of the Employment Rights Act 1996 (“ERA”). His claim was dismissed. At the EAT, C abandoned his claim pursuant to s. 100(1)(e). The EAT dismissed his appeal in relation to s. 100(1)(d). The CA also dismissed C’s appeal.
Central to the reasoning of the dismissal of the claim and the dismissal of the appeals was the factual finding that C did not believe there was a serious and imminent danger from Covid in the workplace.
Section 100(1)(d) ERA provides:
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
(d) 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 proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work.
The CA held that, in a case concerning this section, the Tribunal must decide the following questions:
- Did the employee believe that there were circumstances of serious and imminent danger at
the workplace? i.e. (1) that a danger existed in the workplace, and (2) that it was serious and imminent. If so:
- Was that belief reasonable? If so:
- Could they reasonably have averted that danger? If not:
- Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:
- Was that the reason (or principal reason) for the dismissal?
Since C did not believe that there was a serious and imminent danger caused by Covid at work, the remainder of the questions did not arise for determination in this case. However, in case they did, it was found that if C had believed that Covid was a serious and imminent danger at work, his belief would not have been reasonable due to working in a large and well-ventilated space with a small number of colleagues, and his ability to wear a mask, wash his hands regularly and socially distance for the majority of his work.
C was also able to avert the Covid risks by mask wearing, regular handwashing, social distancing and, where the latter was not possible, by refusing any tasks which removed his ability to socially distance.
The CA also made the following helpful observations of wider relevance:
- Section 100(1)(d) ERA can apply to the kinds of dangers posed by the pandemic.
- The government declaration that Covid constituted a serious and imminent threat to public health was not conclusive in relation to the statutory test which concerns the employee’s belief about dangers at work.
- The section covers serious and imminent danger arising from some problem with the workplace premises, equipment, systems of work or the risk of employees infecting each other with a disease.
- Covid could potentially amount to circumstances of serious and imminent danger in the workplace, but s. 100(1)(d) ERA does not automatically protect any employee refusing to work simply by virtue of the pandemic.
- The danger must arise at the workplace, but it need not be exclusive to it. The employee will be protected even if the same danger is present inside and outside the workplace. However, the employee must believe that they are subject to the danger due to being at work.
- If an employee absents themselves to avoid the danger in the workplace (whether or not it is exclusive to the workplace or real or merely perceived) – and not for some other reason – they will be protected from dismissal for that reason.
Although an employee working in a large well-ventilated space with few colleagues, who can wear a mask, socially distance and regularly wash their hands, is unlikely to be protected from dismissal for refusing to work for Covid reasons, the situation is potentially very different for those working in close proximity to others, such as in a cramped office; particularly if the employer has not sought to mitigate Covid-related risks. The focus of enquiry is on the reasonable belief of the employee as to the extent of the danger in the workplace and whether they can reasonably avert the danger. Practitioners will need to obtain evidence addressing the 5 questions set out above.
This article is not to be treated as legal advice and it must not be relied upon for the giving of advice. The author accepts no responsibility for any loss or consequential losses incurred as a result of any reliance on any matters contained herein.