In the case of Rodgers v Leeds Laser Cutting Ltd, the Employment Appeal Tribunal (EAT) had its first opportunity to consider the fairness of a COVID-19 related dismissal. We explain what employers can learn from the case.

The Employment Tribunal’s decision

The claimant, Mr Rodgers (R), started working for the respondent, Leeds Laser Cutting (L), in June 2019. The first national COVID-19 ‘lockdown’ commenced on Monday, 23 March 2020. The following week, R sent an email stating that “I have no alternative but to stay off work until the lockdown has eased” due to concerns about the risks COVID-19 may pose to his children. R never returned to work and received his P45 on 26 April 2020.

The Employment Tribunal (ET) rejected R’s claim that he had been automatically unfairly dismissed contrary to section 100(d) of the Employment Rights Act 1996 (ERA). The ET concluded that, on the facts of the case:

• R’s decision to stay off work was not because he reasonably believed in dangers at work or at large, and
• R could have taken steps to avoid those dangers.

The EAT dismissed R’s appeal 

The EAT accepted “that an employee could reasonably believe that there is a serious and imminent circumstance of danger that exists outside his place of work [such as, the COVID-19 pandemic] that could prevent him from returning to it, and that such circumstances could potentially fall within section 100(1)(d) ERA.”

However, the EAT agreed with the ET’s decision that this case failed on its facts. Further, even if R had reasonably believed in dangers at work or at large, his claim would have still failed because he could reasonably have taken steps to avoid those dangers by abiding by the guidance in place at that time (wearing a mask, socially distancing, sanitising and washing his hands, etc.).

How employers can protect themselves against similar claims

R’s claim was perhaps not the strongest ‘test case’. However, the EAT’s decision provides helpful guidance for COVID 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  section100 ERA claim if they have put in place measures to reduce risks and make their workplaces ‘COVID secure’.

If health and safety concerns are raised about dangers inside or outside of the workplace, 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.