Darren Rodgers v Leeds Laser Cutting Limited

The appeal concerned an automatic unfair dismissal claim under section 100(1)(d) of the Employment Rights Act 1996, brought after the claimant stayed away from work during the first Covid-19 lockdown. The Employment Tribunal found that the claimant believed there was a danger "at large" in the community but did not believe there was a serious and imminent danger specifically at the workplace, and dismissed the claim. The Employment Appeal Tribunal dismissed his appeal. The Court of Appeal concluded that the Employment Tribunal’s decision was a factual finding about what the claimant believed and did not depend on an erroneous legal proposition that the danger had to be confined exclusively to the workplace. The Court also explained that, purposively construed, section 100(1)(d) protects employees who reasonably believe there is a serious and imminent danger at the workplace even if the same danger may also be present elsewhere, but on the facts this claimant had not established such a belief and, in the alternative, any such belief would not have been reasonable and the danger could reasonably have been averted by distancing and other measures.

Background and procedural posture:

• The claimant started work on 14 June 2019 and, after the first national Covid-19 lockdown, texted his manager on 29 March 2020 saying he would stay away because of infection risk. He was dismissed on 26 April 2020. He brought an ET claim for automatic unfair dismissal under section 100(1)(d) (and originally under (1)(e), later abandoned). The ET dismissed the claim. The claimant appealed to the EAT and then to the Court of Appeal after the EAT dismissed his appeal ([2022] EAT 69).

Nature of the claim and issues:

• This was an automatic unfair dismissal claim under section 100(1)(d) ERA 1996 (leaving or refusing to return to work in circumstances of danger which the employee reasonably believed to be serious and imminent). The court framed the issues as: (i) did the claimant believe there were circumstances of serious and imminent danger at the workplace; (ii) if so, was that belief reasonable; (iii) could the danger reasonably have been averted; and (iv) was the perceived danger the reason (or principal reason) for dismissal.

Facts found by the ET:

• The employer had undertaken a risk assessment, put in place social distancing reminders, masks and hand‑washing facilities, and the workspace was large with a small number of employees so distancing was generally possible. The claimant gave inconsistent evidence (including driving a colleague to hospital during his self‑isolation period) and did not make contemporaneous meaningful complaints about workplace conditions. His text said he would stay off work until the national lockdown eased and made no reference to workplace conditions.

Court of Appeal reasoning and outcome:

• The Court of Appeal held that the ET’s central distinction between a danger "at large" and a danger "specific to the workplace" was a factual finding about what the claimant believed, not an erroneous legal test. Accordingly the appellant failed to show an error of law and the appeal was dismissed. The Court observed that, had the ET applied the legal proposition that danger must be exclusive to the workplace, that would have been wrong: the statute should be read purposively so an employee can be protected where they reasonably believe there is a serious and imminent danger at their workplace even if the same danger exists elsewhere. The Court also upheld the ET’s alternative factual conclusions that any belief in a workplace danger was not objectively reasonable on the facts, and that the danger could reasonably have been averted by following distancing, hygiene and personal protective measures.

Wider context: The Court noted this was the first appeal to reach it on section 100 in the Covid-19 context and that many factual permutations arise; it declined to give broad guidance beyond the principles applied.

The appeal is dismissed. The Court held that the Employment Tribunal’s central finding was a factual finding that the claimant did not believe there was a serious and imminent danger specifically at the workplace and that there was no error of law in that finding. The Court added that, construed purposively, section 100(1)(d) does not require that the danger be exclusive to the workplace, but on the facts the claimant did not establish a reasonable belief in a workplace danger and, in the alternative, any such belief would not have been objectively reasonable and the danger could reasonably have been averted by measures such as social distancing, hygiene and personal protective equipment.

Claim dismissed by Employment Tribunal (Employment Judge Anderson) following hearing on 29 January 2021 (reasons issued 2 March 2021). Appeal to the Employment Appeal Tribunal dismissed by HH Judge Tayler ([2022] EAT 69). Appeal to the Court of Appeal dismissed ([2022] EWCA Civ 1659).