Our Expertise

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.

Covid dismissals

<!-- wp:paragraph --> <p><strong>Refusing to work because of Covid? A dismissal for doing so will not necessarily be automatically unfair.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>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.</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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: <em>Darren Rodgers v Leeds Laser Cutting Ltd </em>[2022] EWCA Civ. 1659. As ever, in so doing, he provided helpful guidance as to the approach to be taken to such cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Facts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On 14/2/20, the Secretary of State for Health and Social Care declared that Covid was a <em>“serious and imminent threat to public health”.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On Saturday 28/3/20, C phoned NHS 111, reported symptoms of Coronavirus and was asked to isolate for a week.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Claim</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Law</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 100(1)(d) ERA provides:<br><em>(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—<br>….<br>(d) in circumstances of danger which the employee reasonably believed to be serious and imminent<br>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.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Guidance</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA held that, in a case concerning this section, the Tribunal must decide the following questions:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1","start":1} --> <ol type="1" start="1"><!-- wp:list-item --> <li>Did the employee believe that there were circumstances of serious and imminent danger at<br>the workplace? i.e. (1) that a danger existed in the workplace, and (2) that it was serious and imminent. If so:</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Was that belief reasonable? If so:</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Could they reasonably have averted that danger? If not:</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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:</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Was that the reason (or principal reason) for the dismissal?</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The CA also made the following helpful observations of wider relevance:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1","start":1} --> <ol type="1" start="1"><!-- wp:list-item --> <li>Section 100(1)(d) ERA can apply to the kinds of dangers posed by the pandemic.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Disclaimer:</strong><br><em>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.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><br></p> <!-- /wp:paragraph -->

Dismissal for Refusing a Covid-19 Vaccine: Fair, in the Right Circumstances

<!-- wp:paragraph --> <p><strong>Written by <span style="text-decoration: underline;"><a href="https://www.parklaneplowden.co.uk/our-barristers/tim-wilkinson/" target="_blank" rel="noreferrer noopener">Tim Wilkinson</a></span></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em><span style="text-decoration: underline;"><a href="https://assets.publishing.service.gov.uk/media/61e68df88fa8f50585ecbafb/Ms_C_Allette_-V-_Scarsdale_Grange_Nursing_Home_Ltd_1803699.2021.pdf" target="_blank" rel="noreferrer noopener">Allette v Scarsdale Grange Nursing Home Limited, case </a></span></em><a href="https://assets.publishing.service.gov.uk/media/61e68df88fa8f50585ecbafb/Ms_C_Allette_-V-_Scarsdale_Grange_Nursing_Home_Ltd_1803699.2021.pdf" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">1803699/2021</span></a>, Employment Judge Bright, sitting in Leeds, has dismissed claims for unfair and wrongful dismissal following Ms Allette’s dismissal for refusing to be vaccinated against Covid-19.&nbsp;Although first instance, and fact-dependent, this judgment will be comforting reading for those who took the difficult decision to dismiss employees in similar situations, or advised that such a path would be reasonable.&nbsp;The dismissal pre-dated the mandatory vaccinations introduced by the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Ms Allette was a care assistant at the Respondent’s nursing home (“the Home”), a family-run business with an average occupancy of thirty-four residents and approximately sixty-five permanent staff.&nbsp;In December 2020, the Home suffered a Covid-19 outbreak and a number of the residents died.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Respondent introduced a requirement for its staff to be vaccinated against Covid-19.&nbsp;This had been planned for December 2020, but postponed until January 2021 following the aforementioned outbreak.&nbsp;Unsurprisingly, the Claimant’s contract of employment did not contain any express clauses requiring vaccinations.&nbsp;The Respondent argued that it was a reasonable management instruction.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In her witness statement for the proceedings, the Claimant put forward a number of reasons why she did not want the vaccine: concerns about the safety of it; her Rastafarian beliefs; and a belief that she was already immune, having previously contracted Covid-19.&nbsp;For various reasons, EJ Bright found that her initial refusal was because of her concerns as to safety, rather than the latter two reasons set out in her statement. Although she raised her Rastafarian beliefs at the disciplinary hearing, the Respondent’s Director (Mr McDonagh) did not believe that to be a genuine reason and, at Tribunal, EJ Bright did not accept that it was a reason for the Claimant’s refusal. With regards to safety, the Claimant did not rely upon or provide to the Respondent any medical authority or clinical basis for her concerns. During discussions, including at the disciplinary hearing, Mr McDonagh explained his understanding of the science and attempted to allay concerns about the compressed testing process behind the vaccine.&nbsp;He had had numerous discussions with Public Health England, amongst others, on the subject.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Ultimately, EJ Bright found that Mr McDonagh genuinely did not believe that the Claimant had a reasonable excuse for refusing the vaccine, and genuinely believed that she would pose a risk to the lives of residents, staff and visitors.&nbsp;The decision to make the vaccine mandatory for staff who were providing close personal care to vulnerable residents was a reasonable management instruction.&nbsp;Although the Claimant did not believe that the vaccine was safe, she relied on no medical authority or clinical basis for her stance.&nbsp;Against the background of the pandemic and all of the available information, her refusal was unreasonable.&nbsp;In dismissing the Claimant’s unfair dismissal claim, EJ Bright accepted that Article 8 of the ECHR was engaged but considered dismissal to be a proportionate means of achieving a legitimate aim.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As always with first instance decisions, care must be taken not to put too much reliance upon its use in future tribunal hearings.&nbsp;EJ Bright was careful to say the following: <em>“In the specific circumstances of this case, therefore, I find that her actions amounted to gross misconduct.&nbsp;That does not mean that a refusal to be vaccinated would amount to gross misconduct, or even misconduct at all, in another case on different facts”</em>. Nevertheless, the judgment is persuasive. It recognises the difficult decisions faced by employers at the time, particularly those caring for vulnerable individuals. There was much discussion in the latter half of 2020 as to whether a vaccination requirement could be a reasonable management instruction.&nbsp;This judgment demonstrates that, in the right circumstances, it was. It is interesting to note that the wrongful dismissal claim also failed, because the Claimant’s safety concerns (and belief in a conspiracy) were unsubstantiated, and she knew that she represented a risk to others. That is despite EJ Bright accepting that her concerns about safety were genuine.&nbsp;One could argue, in such a scenario, that the situation demanded a dismissal on notice.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Tim Wilkinson is an employment specialist. He represents clients in courts and tribunals across the country.</p> <!-- /wp:paragraph -->