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Section 100(1)(d) and (e) of the Employment Rights Act 1996 provides employees with protection from dismissal if they exercise their right to leave the workplace or refuse to return to it, or take other steps to protect themselves, if they reasonably believe there is serious and imminent danger. An employee does not need two years’ service to bring this claim, making it an attractive option for employees with short service. In Rodgers v Leeds Laser Cutting, the EAT has handed down the first appeal decision on the application of section 100 to the Covid-19 pandemic, giving insight on how the law applies in practice.

The employee had less than two years’ service as a laser operator. He was one of around five employees who worked at any one time in a large warehouse-type building. The employer had already put some measures in place before the first national lockdown, including social distancing, extra cleaning and staggered breaks. They reiterated government advice to staff. The employee attended work in the first week of lockdown. He then sent a text message to his manager on 29th March saying that he would not be coming to work until lockdown eased because he was worried about bringing the virus home to his vulnerable child who had sickle cell anaemia. He was dismissed a month later. The employee didn’t have enough service to bring an ordinary unfair dismissal claim so he brought a claim for automatic unfair dismissal under section 100 which doesn’t require two years’ service. 

The employment tribunal said that a reasonable belief in serious and imminent danger should be judged on what was known at the time the actions were taken. On the facts, the tribunal found that the employee didn’t believe there was serious and imminent danger in  the workplace – he believed there was serious and imminent danger everywhere. However, he had also given inconsistent evidence about his fear, which was undermined by his decision to drive a friend to hospital the day after he left work. The text message to his manager referred to coming back when the pandemic eased, not when the workplace had been made safe. The size of the workplace and the real ability to socially distance also meant that such a belief was not objectively reasonable. He could have averted any danger by following the safety measures and refusing to do the occasional task that overstepped them. The EAT agreed. They said that many of the tribunal’s factual findings undermined the employee’s assertions of a belief in serious and imminent danger, both at work and in general, that prevented him returning to work. Those facts included the size of the workplace and the few people in it; the fact that social distancing was generally possible; the availability of masks (which the employee had not asked for); and his behaviour during the pandemic in driving a friend to the hospital and working in a pub during lockdown. The tribunal had been entitled to conclude that he did not reasonably believe that there was serious and imminent danger, either at work or in society more generally, that stopped him returning to work. The EAT agreed that the employee could have taken reasonable steps to avert the danger by adhering to safety guidelines in place, including distancing, handwashing and mask-wearing, both at work and in general. The EAT judge expressed his sympathy for the employee’s concerns for his vulnerable children but said the tribunal had made no legal errors. Although the Covid-19 pandemic could in principle form the backdrop to a case under these provisions, the facts of this case did not fit.

The outcome of this case turned in large part on the behaviour of the employee who gave contradictory and confusing evidence which undermined his assertions about workplace danger. The workplace was large, social distancing was possible and safety measures were already in place even in March 2020. This case shows that implementing safety measures is vitally important and will significantly reduce the risk of ‘danger’ posed to staff by the virus in the workplace and therefore the risk of tribunal claims. However, The EAT noted that the ‘danger’ required for section 100 does not have to be specific to the workplace – it can be a danger ‘at large’ in society, such as a pandemic. It also shows that it is not enough for an employee to be worried about their health or that of their family – they must reasonably believe that the serious and imminent danger affects their ability to go to work. It is likely to be hard for an employee to establish that kind of reasonable belief if the employer has followed government or industry specific health and safety guidance. And, as in this case, it will always be relevant evidence if an employee’s general behaviour, including outside work, flies in the face of their assertions of fear. 

Find out how we can help.  Our partner, Jon Dunkley, heads the Wollens specialist Employment Department.  Contact him today for an informal chat, without obligation on 01271 342268 or via email at [email protected].