Darren Rodgers v Leeds Laser Cutting Limited

For Employment Rights Act 1996, section 100(1)(d), the employee must reasonably believe that there is a serious and imminent danger in the workplace. The danger need not arise exclusively there; it may also exist elsewhere. A reasonable belief in the existence of the danger is sufficient, as well as a reasonable belief in its seriousness and imminence. The employee must leave, propose to leave, or refuse to return because of the perceived workplace danger. A general fear of infection does not satisfy the provision unless the employee believed that the workplace presented the relevant danger. Whether that belief existed and was reasonable remains fact-sensitive.

The appellant was employed as a laser cutter. During the first Covid-19 lockdown he stopped attending work because of concerns about infection and was dismissed. He lacked sufficient qualifying service for an ordinary unfair-dismissal claim and relied on Employment Rights Act 1996, section 100(1)(d).

The Employment Tribunal dismissed the claim, finding that he did not believe there were serious and imminent circumstances of danger within the workplace and, alternatively, that any such belief was unreasonable. The Employment Appeal Tribunal dismissed his appeal: [2022] EAT 69. The central issue before the Court of Appeal was whether the Employment Tribunal had applied an erroneous legal requirement that the danger be specific to the workplace.

1. Appeal dismissed. The Employment Tribunal had not applied a rule that the danger had to be exclusive or specific to the workplace. Its conclusion was a factual finding that the appellant feared Covid-19 generally but did not believe that the workplace itself presented serious and imminent danger. That finding was not challenged on permissible appellate grounds.
2. Section 100(1)(d) should be construed purposively. It is sufficient that the employee reasonably believes in the existence of a serious and imminent danger, as well as reasonably believing that it is serious and imminent. The danger need not be exclusive to the workplace. It may also be present in places such as public transport or shops, provided that the employee believes they are subject to it as a result of being at the workplace.
3. The statutory inquiry may be analysed as follows:
   1. whether the employee believed that there were circumstances of serious and imminent danger at the workplace;
   2. whether that belief was reasonable;
   3. whether the employee could reasonably have been expected to avert the danger;
   4. whether the employee left, proposed to leave, or refused to return because of the perceived danger; and
   5. whether that was the reason, or principal reason, for the dismissal.
4. There is nothing in principle preventing the risk of employees infecting one another with disease from constituting circumstances of serious and imminent danger. Whether it does so depends on the facts of the particular case.
5. Even if the appellant had established a belief in serious and imminent workplace danger, the Employment Tribunal was entitled to find that it was unreasonable, having regard to the size and layout of the workplace, the small number of employees, the ability to socially distance, and the precautions in place. Its alternative conclusion on averting the danger was likewise unassailable.

• Court of Appeal (Civil Division) dismissed the appeal from the Employment Appeal Tribunal.
• Employment Appeal Tribunal dismissed the appellant’s appeal from the Employment Tribunal: [2022] EAT 69.
• Employment Tribunal dismissed the claim for automatic unfair dismissal under section 100(1)(d) of the Employment Rights Act 1996.