First tribunal guidance on "serious and imminent" danger in context of COVID-19
Under s44 and s100 of the Employment Rights Act, an employee is entitled not to be subjected to a detriment or dismissed because they have:
- Left or refused to return to the workplace;
- In circumstances of danger;
- That the employee reasonably believed were serious and imminent; and
- Which they could not reasonably be expected to avert.
There has been a debate about how that protection operates in the context of a public health emergency such as COVID-19. The Employment Tribunal decision in Rodgers v Leeds Laser Cutting Ltd, while not binding on other tribunals, gives some guidance on when the protection will be engaged.
Mr Rodgers told his employer on 29 March 2020 that he would not be returning to work until after the national lockdown in place at that time had eased. He was concerned about the risk COVID-19 presented to his children, as one had an underlying health condition. He was dismissed approximately a month later and brought an automatic unfair dismissal claim, arguing that he had been dismissed for refusing to return to the workplace in circumstances of danger which he reasonably believed to be serious and imminent. He had insufficient service to bring an ordinary unfair dismissal claim.
The Employment Tribunal rejected his claim. Although Mr Rodgers had a genuine belief that there were circumstances of serious and imminent danger, that belief was not objectively reasonable. The mere existence of COVID-19 did not mean that there were circumstances of serious and imminent danger that the employee could not reasonably be expected to avert. If that were the case, any employee could refuse to attend their workplace simply by virtue of the pandemic.
There had to be something more that created a situation of serious and imminent danger in the workplace. In this case the employer had carried out an external risk assessment and followed the government guidance that was in place at the time around social distancing and hand-washing. The workplace was large and had a relatively small number of employees, so social distancing was possible, as Mr Rodgers accepted. Employees had been reminded about the importance of not congregating during breaks and of regular hand washing. The employer made masks available.
In the circumstances the employee’s reason for refusing to work was not directly linked to his working conditions but to the situation at large. He did not have a reasonable belief that there were circumstances of serious and imminent danger in the workplace so his claim failed.