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Employees can claim automatic unfair dismissal (from day one of employment) where they are dismissed because they left or refused to return to work in circumstances of danger which they reasonably believed to be serious and imminent, and which they could not reasonably have been expected to avert. In its first Covid-related dismissal case, Rodgers v Leeds Laser Cutting, the Court of Appeal has held that it is sufficient for the employee to establish a reasonable but erroneous belief that there were circumstances of danger in the workplace (in addition to a reasonable belief that the danger was serious and imminent) – the danger does not need to be established as an objective fact. It does not matter that the danger is generated, and therefore also present, outside the workplace (such as a pandemic where the danger is “at large”), provided the employee reasonably believes that there is danger in the workplace itself and this is the reason for leaving or refusing to return.
However, on the facts the Court of Appeal took the same line as the EAT, finding no error in the tribunal’s decision that the employee here did not hold the requisite belief and that such a belief would not have been reasonable in the specific circumstances. The employee’s position was undermined by findings of fact including that he remained at work for several days after the first lockdown was announced; that he could generally maintain social distance at work (where the employer had implemented the precautions recommended by government guidance); that he had not asked for a mask when masks were available; that he had driven a friend to hospital while he was meant to be self isolating; and that he worked in a pub during the lockdown. The employee’s dismissal for refusing to return to work was therefore not automatically unfair.
Although these types of claim are very fact-specific, the case does highlight the significance of the steps both employer and employee adopted in determining whether the employee in fact held the required reasonable belief of danger. An employer’s compliance with the government’s Covid safety guidance will help to establish that an employee’s belief in danger in the workplace was not reasonable.
The ruling is also interesting for the Court’s view that the protection does not apply where the perceived danger applies only in relation to the journey to work, and not at the workplace itself. However, this part of the ruling was obiter and the Court did not discuss earlier authority holding that the protection could extend to a commute at least where the transport to work is provided by the employer. Further, even if an employee is unable to claim automatic unfair dismissal, they may still be able to claim ordinary unfair dismissal (where the employee has two years’ service) and in some cases disability discrimination.
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