D RODGERS v LEEDS LASER CUTTING LTD

Section 100(1)(d) of the Employment Rights Act 1996 can protect an employee who leaves, or refuses to return to, work because of a reasonably believed serious and imminent danger. A danger need not originate in the workplace. The statutory question nevertheless requires a fact-sensitive assessment of the employee’s actual belief, its reasonableness, and whether the danger could reasonably have been averted.

The existence of the Covid-19 pandemic, or a public-health declaration concerning it, does not by itself establish those requirements. Reasonable protective measures, including distancing, hygiene and available personal protective equipment, may mean that the employee could reasonably have averted the danger.

The claimant, a laser operator, did not return to the respondent’s workplace after 27 March 2020. He cited concerns about Covid-19 and the vulnerability of his children. The respondent later sent him a P45, which it accepted amounted to dismissal.

The Employment Tribunal dismissed his claim that the dismissal was automatically unfair under section 100(1)(d) or (e) of the Employment Rights Act 1996. It found that the large workplace, with few workers and available safety measures, permitted social distancing. It also found that the claimant’s concern was a general concern about the pandemic rather than a belief in serious and imminent workplace danger.

On appeal, the central issue was whether the Tribunal had erred by treating the claimant’s general concern about danger outside the home as incompatible with a reasonable belief that returning to work involved serious and imminent danger.

1. Appeal dismissed. The Employment Tribunal made no error of law in rejecting the automatic-unfair-dismissal claim under section 100(1)(d) of the Employment Rights Act 1996.

2. Section 100(1)(d) requires an assessment of whether the employee believed that circumstances of danger were serious and imminent, whether that belief was reasonable, whether the danger could reasonably have been averted, whether the employee left or refused to return to work, and whether that conduct was the reason or principal reason for dismissal. The components need not be considered in artificially separate compartments, provided that none is overlooked.

3. A danger need not be generated by the workplace itself. Nor must the possible harm arise at work or affect the employee or fellow employees. An employee may in principle reasonably believe that danger outside the workplace prevents a return to it. The pandemic could also in principle create circumstances of serious and imminent danger. However, the statutory test remains dependent on the facts of the individual case.

4. The Tribunal did not hold that a general fear of Covid-19 could never coexist with a reasonable belief that work was dangerous. Rather, it permissibly found that this claimant did not hold such a belief about work or about danger generally that prevented his return. Its findings included the size of the workplace, the small number of workers, the ability to distance, the availability of masks, and the claimant’s conduct outside work.

5. The Tribunal was independently entitled to find that any danger could reasonably have been averted. The claimant could distance, wash or sanitise his hands, use personal protective equipment, and raise or decline particular tasks that prevented distancing. Section 100(1)(d) was therefore not engaged.

6. The EAT also concluded that leaving or refusing to return to work falls for consideration under section 100(1)(d), rather than as an appropriate step under section 100(1)(e). That conclusion confined the appeal to section 100(1)(d).

• Employment Appeal Tribunal: dismissed the claimant’s appeal and upheld the dismissal of the automatic-unfair-dismissal claim under section 100(1)(d) of the Employment Rights Act 1996.
• Employment Tribunal: Employment Judge Anderson dismissed the claim following a hearing on 29 January 2021. The judgment was sent to the parties on 1 March 2021.