We are starting to see more employment tribunal cases related to the Coronavirus pandemic and whilst these judgments are not binding, they do give some insight into how cases are being decided.
It is significant that the case of Rodgers v Leeds Laser Cutting Limited, arose from an employee with less than two years service, which is normally required to claim unfair dismissal.
Exercising the right for reasonable protection
An employment tribunal has considered a COVID-19 related claim under sections 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA 1996) which provide employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger.
Mr Rodgers messaged his manager on 29 March 2020 to state that he would be staying away from his workplace "until the lockdown has eased" because he was worried about infecting his vulnerable children, a baby and a child with sickle-cell anaemia, with COVID-19. A month later, he was dismissed.
Mr Rodgers did not have sufficient service to claim ordinary unfair dismissal. Instead, he alleged that he had been automatically unfairly dismissed for exercising his rights under sections 100(1)(d) and (e) of the ERA 1996.
Establishing the facts of workplace danger
The tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known when the relevant acts took place. On the facts, such a belief could not be established, so sections 100(1)(d) and (e) were not engaged and the claim failed.
- Despite Mr Rodgers' concern about COVID-19, he had breached self-isolation guidance to drive a friend to hospital on 30 March 2020 (the day after leaving work).
- Mr Rodgers' message to his boss did not mention concerns about workplace danger and he could not show there had been any such danger. In March 2020, government safety guidance advised hand washing and social distancing. The employer had implemented both precautions.
- Mr Rodgers had not taken any steps to avert danger or raised concerns with his manager before absenting himself from work. This was not appropriate.
- The tribunal rejected Mr Rodgers' argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer's safety precautions. It found that accepting this submission could lead to any employee being able to rely on sections 100(1)(d) and (e) to leave the workplace, simply by virtue of the pandemic.
Employers should follow appropriate measures
This decision is not binding and turned on the specific facts. However, it demonstrates the importance of implementing appropriate COVID-19 secure measures. Employers who do so may reduce the risk of successful claims under sections 100(1)(d) and (e) by making it harder for employees to establish that the workplace is dangerous.