Background

The claimant, Mr Rodgers (R), had his claims of automatically unfair dismissal contrary to sections 100(1)(d) and/or 100(1)(e) of the Employment Rights Act 1996 (ERA) rejected by the Employment Tribunal (ET) in March 2021 and the Employment Appeal Tribunal (EAT) in May 2022.  The facts of the case and those decisions are summarised in our 19 May 2022 insight. R appealed to the Court of Appeal.

The Court of Appeal’s decision

The Court of Appeal dismissed R’s appeal and his claims on the following bases:-

• Section 100(1)(d): circumstances of danger - The fact that R had genuine concerns about the pandemic and the safety of his children, did not mean that he necessarily had a reasonable belief that there were serious and imminent circumstances of danger, either at work or elsewhere, that prevented him from returning to work. The ET had correctly applied the law and, in doing so, legitimately concluded that R’s case failed on its facts.
• Leaving or refusing to return to a place of work – R’s section 100(1)(e) ERA claim failed as leaving or refusing to return to work could only fall within section 100(1)(d) ERA; it did not constitute taking "appropriate steps" within section 100(1)(e) ERA.

General Principles

Before making their decision in this case, the CA reviewed a number of ET decisions in section 100(1) ERA claims and noted that they had been brought in a variety of different circumstances. As a result, the CA concluded that it would be unsafe to attempt to provide any more than general guidance for such claims (set out below).

Section 100 ERA claims are not limited to those where the danger in question at the workplace relates to the premises, equipment, system of working or the manifestation of a more chronic problem. The risks to employees of infection (whether those posed by the pandemic or by any other infectious disease) can, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent.

There are five questions to be decided by the ET in a section 100(1)(d) ERA claim:

1. Did the employee believe that there were circumstances of serious and imminent danger at the workplace?
   
2. Was that belief reasonable?
   
   In answering questions (i) and (ii), it is sufficient that the employee has a reasonable belief in the circumstances of danger as well as in its seriousness and imminence; the employee does not have to be right about the danger in order to be protected from dismissal if they take action to avoid that danger.
3. Could they reasonably have averted that danger?
4. Did they leave, or propose to leave, or refuse to return to the workplace or the relevant part because of the (perceived) serious and imminent danger?
   
   If the answer to question (iv), is negative, the claim will fail; section 100(1)(d) ERA only applies where the employee has left the workplace (or proposed to or refused to return) because of the perceived danger.
   
   It also follows that the danger in question must arise at the workplace; otherwise, the issue of the employee leaving would not arise. However, this does not mean that it can only arise at the workplace.
5. Was that the reason or principal reason for the dismissal?
   
   CA found that that ET’s reasoning in this case in respect of these questions was not flawed and that R did not have a reasonable belief that there were serious and imminent circumstances of danger in the workplace.
   

How employers can protect themselves against similar claims

The CA’s decision provides helpful guidance for COVID-19 related dismissal cases. Although the scope of section 100 ERA extends beyond concerns about dangers in the workplace, employers can be reassured that they will have good grounds to defend a section 100 ERA claim if they have put in place measures to reduce risks and make their workplaces ‘COVID-19 secure’.

If health and safety concerns are raised about dangers inside of the workplace (which may also extend outside of it), we recommend that employers work with the individual(s) and staff side to agree a way forward. Of course, it is not always possible to do so, but, if a section 100 ERA claim does result, the action taken (and documented) by the employer will provide good grounds upon which to defend a claim.

How Capsticks can help

Capsticks has significant experience of supporting employers to meet their health and safety obligations (particularly during the COVID-19 pandemic) and also to deal with any complaints that may arise (by conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims).

For further information on how we might assist your organisation, please contact Victoria Watson, Alistair Kernohan or Chloe Edwards.