Coronavirus Not a ‘Serious and Imminent Threat’ To Justify AWOL Employee
Key Contact: Claire Knowles
Author: Laura Spence
This is the first time the Court of Appeal have been faced with examining a case involving Covid-19 and the application of Section 100(1)(d) Employment Rights Act (ERA).
At the time of the Covid-19 pandemic, the claimant, Mr Rodgers was employed by Leeds Laser Cutting to work in a large warehouse. Despite being one of several employees employed in this setting, social distancing could be observed for the majority of the role and PPE was provided to staff.
After developing a cough, Mr Rodgers was advised by the NHS to self-isolate and he obtained an isolation note to excuse him from work for a period of time. Shortly after, he texted his manager to inform him that he would not be able to return to work until “lockdown has eased” as he had concerns about the wellbeing of his 5-year-old son, who suffers with sickle cell anaemia. Mr Rodgers refused to return to work when his self-isolation note expired and made no further effort to communicate his intention to stay at home to his manager. He was then informed that he had been dismissed.
Mr Rodgers, who had less than 2 years’ service, brought a claim for automatic unfair dismissal against his employer on the basis that he was exercising his right to leave work in the face of “serious and imminent” danger. The Tribunal concluded that Mr Rodgers failed to provide sufficient evidence to back up his claim, specifically highlighting that during the time he was supposed to be isolating, he was found to be driving his car with a friend, undermining his fears of Covid. The employer took appropriate safety measures to protect staff against transmission of the virus and the claimant did not take any steps to avert the danger or raise concerns with his manager before leaving. In any event, the Tribunal concluded his fears of Covid-19 were general, not specifically in relation to his workplace and therefore, Section 100 was not made out and his dismissal was found to be fair.
This was upheld in the Employment Appeal Tribunal (EAT), namely that Mr Rodgers did not hold a reasonable belief of serious and imminent danger and could have taken reasonable steps to avert the risk of transmission.
The Court of Appeal (CA) agreed with the EAT’s decision and provided further guidance on the legal tests applied in circumstances of perceived danger in the workplace. Although coming to the same conclusion, the CA took a different interpretation of the law, focusing on the danger in the workplace and that whether or not the danger was also present out the workplace is immaterial.
This decision provides useful guidance about how the courts will determine claims where employees refused to return to work due to the dangers such as viruses and other transferrable diseases. Employers who put appropriate measures in place to protect staff against transmission of Coronavirus will find themselves well-placed to defend such claims.
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