UK: first EAT ruling on Covid-related automatic unfair dismissal claim

In its first Covid-related unfair dismissal case, Rodgers v Leeds Laser Cutting, the Employment Appeal Tribunal has clarified when automatic unfair dismissal protection (which does not require the usual two years' service) will be available where an employee leaves work or refuses to return in circumstances of danger which the worker reasonably believes to be serious and imminent, and which they could not reasonably have been expected to avert.  The EAT has made clear that there is no need for the circumstances of danger to be generated by the workplace itself, or that the harm will occur at the workplace or to workers;  the danger could arise from circumstances outside the workplace (the Covid risks at large, on leaving the home) or be to family members (the employee had clinically vulnerable children).  Obiter, the EAT also diverged from previous authority in concluding that a reasonable but erroneous belief that there were circumstances of danger is sufficient (in addition to reasonably believing the danger was serious and imminent).

However, on the facts the EAT upheld the tribunal's decision that the employee here did not hold the requisite belief. His position was undermined by findings of fact including that he remained at work for several days after the first lockdown was announced; that he could generally maintain social distance at work (where the employer had implemented the precautions recommended by government guidance); that he had not asked for a mask when masks were available; that he had driven a friend to hospital while he was meant to be self isolating; and that he worked in a pub during the lockdown.

The EAT held that the tribunal was also entitled to find that there were steps the employee could reasonably have taken to avert the danger.  These included wearing a mask, socially distancing, sanitising and washing his hands.  He had not asserted any particular difficulty about his journey from home to work that would require him to take additional steps to those available at work. The employee’s dismissal for refusing to return to work was therefore not automatically unfair.

Although these types of claim are very fact-specific, the case does highlight the significance of the steps both employer and employee adopt in determining whether the employee does in fact hold the required reasonable belief of danger.  As perceived and actual levels of risk continue to change, employers should continue to tread carefully when dealing with employees who are clinically vulnerable or live with clinically vulnerable individuals and who are reluctant to return to the workplace.  Employers should discuss with the individual what precautionary measures might address their concerns.  If satisfactory arrangements cannot be agreed, employers contemplating dismissal will need to bear in mind the risks of: an automatic unfair dismissal claim, ordinary unfair dismissal rights (where the employee has two years' service), and in some cases disability discrimination.