03/01/2023

COURT OF APPEAL DISMISSES APPEAL ABOUT SERIOUS & IMMINENT DANGER IN WORKPLACE (20 December 2022)

In May 2022, the Employment Appeal Tribunal in Great Britain held that dismissal of Mr Rodgers for leaving his workplace (Leeds Laser) and refusing to return because of Covid-19-related concerns was not an automatically unfair dismissal.

Mr Rodgers appealed to the Court of Appeal (CA) and his case was heard on 4 November 2022 with the Judgment being handed down shortly before the Christmas recess, on 20 December 2022.  To the relief of many businesses the Court of Appeal dismissed his appeal.  The case is noteworthy not least as it is the first covid related case at Court of Appeal level.

RECAP OF CASE

This case first attracted attention as it considered what constituted a serious & imminent danger in the workplace that the employee could not reasonably have been expected to avert.

In circumstances of a serious & imminent danger in the workplace that the employee could not reasonably have been expected to avert, any dismissal of employee for leaving, proposing to leave, or refusing to return to, the workplace is automatically unfair under section 100 (d) of Employment Rights Act 1996; the equivalent legislation in Northern Ireland is Article 132 (d) Employment Rights Order (Northern Ireland) 1996.

This right of automatic unfair dismissal is a Day 1 Right. In other words, employees do not need 2 years’ service (required in GB) to bring automatically unfair dismissal claims.
NB: the service requirement for unfair dismissal in Northern Ireland is 1 year.

The Tribunals had found that R had ‘general concerns’ about covid when he refused to attend the workplace.

COURT OF APPEAL (CA) GAVE SOME GENERAL GUIDANCE ON THE APPLICATION OF THIS RIGHT:

On appeal, the Court of Appeal not only determined the case but took the opportunity to give some general guidance on what amounts to serious & imminent danger in the workplace that the employee could not reasonably have been expected to avert.

Firstly, CA held ‘In circumstances of danger which the employee reasonably believed to be serious and imminent’ – can be read as requiring tribunal to decide:

1. If (objectively) there was a danger and then, separately,
2. If the employee reasonably believed the danger to be serious and imminent (which involves both subjective and objective elements).

Secondly, CA commented that on a literal reading of section if an employee was wrong about danger (e.g. he believed that green gas in workplace was poisonous but the green gas actually turned out to be harmless) that they would not be protected.

Whilst the EAT had declined to comment on this the CA said section should be construed purposively not literally that is it is sufficient that employee has (reasonable) belief in the existence of the danger as well as in its seriousness & imminence.

Thirdly, CA also held the section only applies where employee has left the workplace (or proposes to do or has not returned) because of the perceived danger rather than for some other reason.

Fourthly, CA rejected contention that section applies to serious and imminent danger at the workplace but also if it arose on journey to work. The CA made clear that danger must arise at the workplace – or that the employee is subject to danger as result of being at the workplace. The CA reasoned this, as if that were not the case, the question of them leaving the workplace would not arise.

However, the CA commented that 100 (1) (d) does not require the danger be exclusive to the workplace (e.g. covid was both inside and outside). All that matters is that the employee reasonably believes that there is serious & imminent danger in the workplace.

The CA also commented favourably on the measures that the employer had taken to avert the risk, which was in the very early days of the pandemic.

Full case report Darren Rodgers V Leeds Laser Cutting Limited