Automatic Unfair Dismissal

News  |   17 May 2022

Written by
Sarah Wilkinson, Associate Solicitor

In what is believed to be the first binding Covid-19 related decision on automatic unfair dismissal, the Employment Appeal Tribunal (EAT) has held that it was not automatically unfair to dismiss an employee who refused to attend work over concerns about the risk of Covid-19 to his vulnerable children.

Pre-Covid-19, section 100 of the Employment Rights Act 1996 (ERA) was rarely referred to. It has since been the subject of a large number of first instance decisions. S.100 makes the dismissal of an employee whose employment is terminated in the following instances automatically unfair:

  • in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he left or proposed to leave or refused to return to his workplace; and
  • in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect themselves or others from the danger.

This is a Day 1 right which means that employees do not need two years’ continuous service to bring such a claim.

Facts

Mr Rodgers refused to attend work during the first national lockdown because of his concerns about infecting his vulnerable children who could become very ill if they caught Covid-19. He was dismissed and claimed that he had been automatically unfairly dismissed because he had exercised his right not to return to the workplace to protect himself from circumstances of danger, which he had reasonably believed were serious and imminent and which he could not reasonably have been expected to avoid. Notably, Mr Rodgers did not have the necessary two years’ service to bring an ordinary unfair dismissal claim.

Tribunal decision

In the first instance, the Employment Tribunal held that Mr Rodgers’ general concerns about Covid-19 were not directly attributable to the workplace. Further, his actions (e.g. not wearing a facemask, leaving his home during self-isolation, and continuing to work in a pub during lockdown) did not support his argument that there were circumstances of danger which he believed were serious and imminent.

His claim was dismissed.

EAT decision

Mr Rodgers appealed the decision. The EAT accepted that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented him from returning to the workplace. However, on the specific facts of this case, the Tribunal had found that Mr Rodgers did not reasonably believe that there were circumstances of danger which were serious and imminent, either at work or at large. The EAT confirmed that on a fair reading, the Tribunal had concluded that Mr Rodgers considered his workplace constituted no greater risk than there was at large. Had Mr Rodgers followed the steps taken by his employer to avert the danger of infection in the workplace, the danger would have been averted. As a result the key requirement in s.100 ERA that there must be danger that can’t reasonably be averted was not engaged.

Comment

Many employers will be reassured by this decision if they took steps to reduce the risk of infection in the workplace as they will be well placed to defend claims presented under s.100 ERA. That said, the circumstances in this case were very fact specific and Mr Rodgers’ actions certainly attributed to his own downfall. The case could have gone very differently if valid concerns raised by Mr Rodgers were ignored by the organisation.

Organisations should continue to be aware of the “reasonable belief” argument outlined above. We are all only too aware that the threat of Covid-19 is likely to be around for some time, if not forever. Our advice to organisations would therefore be to ensure that all concerns are fully listened and responded to and, if necessary, changes considered.

If you, or your business, require any advice on matters similar to those referred to above, please do not hesitate to contact our Employment Team on 020 8290 0440.

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