Yes, was the answer by an employment tribunal in the matter of D Rodgers v Leeds Laser Cutting. During the early stages of the pandemic, Mr Rodgers, refused to attend work because he was worried that if he caught the coronavirus, he would infect his vulnerable children. In this blog, we outline the key facts of the case and why this was upheld as a fair dismissal.
Mr Rodgers started working as a Laser Operator for the Leeds based company in June 2019. He worked in a large warehouse which, in March 2020, had around five people working within it. Following the announcement of the first national lockdown on 23 March 2020, the Company announced it would remain open and put safe measures in place so that staff could continue to work. Following a risk assessment, various recommendations were made (or already in place) including social distancing, provision of masks, staggered start, finish and break times and wiping down surfaces regularly.
On 29 March 2020, the Claimant sent a text message to his line manager saying “unfortunately I have no alternative but to stay off work until the lockdown has eased. I have a child of high risk as he has siclecell (sic) & would be extremely poorly if he got the virus & also a 7 month old baby that we don’t know if he has any underlying health problems yet”. His manager acknowledged this stating “okay mate, look after yourself”.
There was no contact between the parties until 24 April 2020 when Mr Rodgers sent a text message to his manager stating: “just been told iv been sacked for self isolating, could you please send it to me in writing or by email…with an explanation of why my employment ended with the date it ended. i also need my p45 sending out as soon as possible”.
Under section 100 of the Employment Rights Act 1996, employees are protected from dismissal where they have taken steps to protect themselves and others from being in serious and imminent danger at work. It is this which Mr Rodgers tried to argue. Mr Rodger’s did not have 2 years’ employment service, meaning that his options to make a claim (including unfair dismissal) against the Company were limited. However, s.100 is one of the exceptions to the 2-year rule, therefore if Mr Rodgers could establish that the principal reason for his dismissal was related to averting work due to serious and imminent danger to himself or others, it would be automatically deemed unfair.
As part of the legal test, the tribunal was required to consider whether Mr Rodgers genuinely believed the circumstances were of serious and imminent danger and whether that belief was an objective one (one of a reasonable person).
Why Was This a Fair Dismissal?
The tribunal accepted that Mr Rodgers was concerned about the pandemic and the impact on his family, but he often gave conflicting evidence. For example, he claimed that he had not left the house in nine months, but also accepted during this period that he had left the house on 30 March 2020 despite being advised to self-isolate. Overall, the tribunal found that he did not have such a belief in serious and imminent danger at work and therefore held that it was a fair dismissal. The tribunal paid particular attention to his text message on 29 March 2020, which made no reference to the measures or lack of measures implemented as playing a part in his decision to absent himself from work, noting “he intended, seemingly regardless, to remain absent until the national lockdown was over”. For the avoidance of any doubt, it further concluded that his belief was not an objective one as, given the large size and small number of employees in the workplace, “it was not hard to socially distance and measures were put in place to reduce the Covid-19 transmission”.
In respect of Mr Rodgers concerns around his family, the tribunal did not accept the Claimant’s evidence. It pointed out that he raised no formal complaints and was not satisfied that his removing himself from the workplace was appropriate given he admitted it was not hard to socially distance at work, save for specific tasks. The tribunal found Mr Rodgers could have averted the dangers by following the guidance which tied-in with the fact that Mr Rodgers accepted his own home was no safer than work.
Final Thoughts on the Case
Section 100 of the Employment Rights Act 1996 has rarely ever been a feature in modern day employment tribunal litigation. The pandemic brought this particular law into focus, but it was never drafted or designed to be applied in a global pandemic situation. This is one of the first cases arising from the pandemic to reach a final hearing and there are likely to be many further tribunal claims waiting to be heard flowing from dismissals throughout 2020.
This particular case highlights that any employee seeking to rely on this provision will need to clearly show that they had a genuine belief of serious and imminent danger at the time. Any contractions to this belief could easily undermine the employee’s argument over genuine belief in their safety. That belief must also be objectively reasonable; therefore, it is entirely feasible that someone could be really worried about their safety at work, but unless that belief is a reasonable one to have in the circumstances, the claim is likely to fail and a termination would be deemed as a fair dismissal.
If you have any concerns about an unfair dismissal from an employee or employer’s perspective, or would like further assistance with Employment Law matters, please contact Warren Moores, Associate, on 0161 475 1225 or email [email protected].