Rodgers v Leeds Laser Cutting Ltd (EAT)

The Employment Appeal Tribunal upheld the Employment Tribunal's dismissal of an automatic unfair dismissal claim under section 100(1)(d) (and considered subsection (e)) of the Employment Rights Act 1996. The EAT found no error of law in the tribunal's factual findings that the claimant did not hold a reasonable belief that there were serious and imminent circumstances of danger at the workplace which he could not reasonably have been expected to avert. The tribunal's conclusions rested on findings about the nature of the workplace (a large, sparsely occupied warehouse), available and implemented control measures (social distancing, handwashing, masks and an external risk assessment), the claimant's inconsistent evidence and conduct (including driving a friend to hospital while self-isolating), and that he had not raised meaningful workplace-specific complaints. Consequently the tribunal was entitled to find the claimant could reasonably have averted risks by following prevailing guidance and using available precautions.

Background and nature of claim:

The appellant was a laser operator who stopped attending work during the early stages of the COVID-19 pandemic. He alleged automatic unfair dismissal under section 100(1)(d) and alternatively (e) of the Employment Rights Act 1996, asserting he left or refused to return because he reasonably believed there were serious and imminent circumstances of danger arising from the pandemic which he could not reasonably have been expected to avert, and that he had taken appropriate steps to protect himself and others.

Procedural posture:

• The claim was heard by Employment Judge Anderson on 29 January 2021 and judgment was sent 1 March 2021. The claimant appealed to the Employment Appeal Tribunal, which heard the appeal on 12 April 2022 and delivered judgment on 6 May 2022.

Key facts and tribunal findings:

• The workplace was a large warehouse-type space (roughly half a football pitch) where typically five people worked and, on the relevant days, staffing levels allowed social distancing for most tasks.
• An external risk assessment in mid-March 2020 identified standard COVID-19 mitigations; the tribunal found many recommendations were already in place and staff had been advised about distancing and handwashing.
• The claimant developed a cough in late March 2020 (attributed by him to dust), left work on 27 March 2020 and informed his manager by email on 29 March that he would stay off work until the lockdown eased because of concern for vulnerable family members. He provided an NHS 111 self-isolation note for 28 March–3 April 2020 but drove a colleague to hospital on 30 March.
• The claimant did not make clear, specific complaints to management about workplace safety measures, did not request a mask (tribunal found masks were available) and made limited further contact until he received a P45 on 24 April 2020 (accepted by respondent as constituting dismissal).

Issues framed:

1. Whether leaving, or refusing to return to, a place of work in these circumstances could fall within section 100(1)(d) and/or (e) ERA (parties agreed the appeal would be considered under section 100(1)(d)).
2. Whether there were "circumstances of danger" the claimant reasonably believed to be serious and imminent, whether that belief was reasonable, and whether he could reasonably have been expected to avert the danger.
3. Whether the Employment Tribunal erred in law in its analysis and findings.

Court's reasoning and outcome:

• The EAT discussed whether the statutory phrase "circumstances of danger" requires an objective finding of danger or whether a reasonable belief by the employee suffices, noting both approaches and concluding it was unnecessary to decide that question in this case because the tribunal accepted the pandemic created some danger.
• The EAT held the tribunal lawfully evaluated the claimant's subjective belief together with objective reasonableness. The tribunal's findings that the claimant's concerns were general rather than workplace-specific, his inconsistent evidence and conduct, the availability and operation of control measures, and the absence of specific complaints supported the conclusion that he did not reasonably believe there were serious and imminent circumstances of danger at work that he could not reasonably have averted.
• The tribunal was entitled to find the claimant could have averted risk by following government guidance (distancing, handwashing) and using personal protective equipment, and by raising or refusing specific tasks that impeded distancing.

The EAT concluded there was no error of law and dismissed the appeal.

Appeal dismissed. The EAT held that the Employment Tribunal did not err in law in finding the claimant did not reasonably believe there were serious and imminent circumstances of danger at his workplace which he could not reasonably have been expected to avert, and that therefore his dismissal was not automatically unfair under section 100(1)(d) ERA. The tribunal's factual findings on workplace size, available measures, the claimant's inconsistent evidence and conduct, and the absence of meaningful workplace complaints supported that conclusion.

Appeal to the Employment Appeal Tribunal from the Employment Tribunal (Employment Judge Anderson) which heard the claim on 29 January 2021 and sent judgment on 1 March 2021. EAT judgment delivered 6 May 2022, Neutral Citation [2022] EAT 69.