Rodgers v Leeds Laser Cutting Ltd [2022]

Was it automatically unfair to dismiss an employee who refused to return to the workplace during the pandemic because he wanted to protect his vulnerable children?

Guidance from Covid-related caselaw remains sparse even 2 years after the pandemic began.

The impact of Covid-19 caused a great deal of worry amongst those being asked to continue going into the workplace. And many who wanted to protect themselves and their families and refused to go to work, lost their jobs. However, meeting the requisite tests in a claim of automatic unfair dismissal under Section 100 of the Employment Rights Act 1996 – ‘Health and Safety cases’ is particularly complicated by the novel nature of the virus.

To gain protection, a claimant needs to show that they have been faced with  circumstances of danger within the workplace, which they need to protect themselves from and show that they ‘reasonably believed’ the danger was ‘serious and imminent’. It must also be demonstrated that they ‘could not reasonably have been expected to avert’ the danger and so left the workplace or refused to return to it whilst the danger persisted. This multi-faceted test is hard to meet.

Only if all the elements are met will a subsequent dismissal because of leaving the workplace or failing to return to it be automatically unfair. Meeting the test is especially burdensome when the danger in question is the risk of contracting Covid-19.

Rodgers v Leeds Laser Cutting Ltd [2022] EAT 69

In the case of Rodgers v Leeds Laser Cutting Ltd [2022] EAT 69 the claimant contended that he had been automatically unfairly dismissed because of his refusal to return to the workplace which he believed put him at risk of contracting Covid-19, which could then be passed to his clinically vulnerable children.

His claims failed in the tribunal and an appeal was pursued to the EAT.

Although there were a number of differences in the parties’ evidence concerning when and how the claimant first informed his employer that he was leaving the workplace, it was clear that the workplace was a large warehouse-like building with only around 5 workers present at one time, so it was possible to socially distance whilst there.  The employer also provided face coverings and implemented other measures to ensure the workplace was ‘covid safe,’ following a risk assessment.

Covid-19 clearly created circumstances of danger, but the tribunal had to decide whether Mr Rodgers reasonably believed that those circumstances were ‘serious and imminent’. It concluded that he didn’t believe there was any greater risk at work than in the world at large. Just because he had concerns about Covid-19 and the safety of his children didn’t mean he had a genuine belief there were serious and imminent circumstances of danger that prevented him from returning to work.

What impacted on this was not only the “covid safe” working environment but also the fact that Mr Rodgers had remained at work for a period following the announcement of the lockdown, he had not asked for masks when they were available, he had driven another to hospital whilst he was meant to be self-isolating and he also worked in a pub during lockdown!

The tribunal had also been entitled to decide that steps could reasonably have been taken to avert the danger, including mask wearing, socially distancing, sanitizing and washing his hands.

As His Honour Judge James Taylor pointed out at appeal, because of the nature of Section 100 claims, it is necessary to analyse “both objectively and subjectively” whether a claimant reasonably believed there were circumstances of serious and imminent danger.  Preferring the evidence of the employer, the Tribunal and the Appeal Tribunal felt the claim fell down on this most crucial component.

 Specialist Employment Solicitors

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