The Employment Appeal Tribunal has endorsed an employer’s defence against a COVID-related claim for unfair dismissal. Mr Rodgers brought proceedings after he was dismissed for failing to come into work during the early days of the pandemic, due to his concerns about the health and safety risks associated with the virus.
The claim was brought under section 100 Employment Rights Act, which provides that certain dismissals for health and safety related reasons are automatically unfair. He did not have the two years’ service required to bring an ordinary unfair dismissal claim, but section 100 claims do not require any qualifying period of service.
Section 100 creates five different rights for employees. Mr Rodgers principally relied on the fourth of these (section 100 (1) (d)) which applies where an employee leaves or fails to return to their place of work because there are “circumstances of danger” which they reasonably believe to be “serious and imminent” and which they could not reasonably have been expected to avert.
The employment tribunal accepted that Mr Rogers could make a case that these provisions were engaged, but dismissed his claim. While it was possible that in certain circumstances the risk of contracting COVID infections could amount to “circumstances of danger”, Mr Rogers could not demonstrate that he had a reasonable belief that any such danger was serious and imminent. The tribunal took into account that his place of work was spacious and that it was not difficult to maintain social distancing. There was also evidence that his approach to risk was inconsistent, given that he had not asked for a mask and had been prepared to give a neighbour a lift to hospital even though this was against the relevant guidance at the time. The EAT has now upheld this reasoning.
The facts of this case arose in March 2020, during the early days of the first national lock-down, and it is the first COVID-related unfair dismissal case to reach the EAT. It appears that Mr Rodgers’ workplace was exceptionally safe, but this does not mean that COVID-related claims under section 100 ERA cannot succeed in other circumstances. The wider significance of this appeal is that it endorses the possibility that the risk of infection with COVID could in other circumstances amount to a danger which it is reasonable to believe is ”serious and imminent”.
Such circumstances could certainly have arisen in the first two years of the pandemic, particularly before the vaccination roll-out, and might arise in the future while the incidence of COVID infections remains high, if the workplace is particularly high risk, or the claimant particularly vulnerable. However, each case will depend on its particular facts, and the risk of successful claims will be mitigated for employers who, like the one involved in this appeal, have followed the relevant workplace guidance.