Background:

The claimant was employed as a laser cutter from July 2019.  The issue arose in March 2020 when the claimant initially came into work (after lockdown had been announced) but then texted his manager to say he was going to stay at home because he had a child with an underlying health condition.   The employer had put steps in place and the workspace was a large warehouse which typically had no more than 5 employees in the building.  The claimant was dismissed in April 2020.  The claimant claimed automatic unfair dismissal citing health and safety grounds.

Outcome:

Both the Tribunal and EAT dismissed the claimant’s case.   They found that the decision to stay off work was not directly linked to the working conditions but general concerns.  The Tribunal also found that they did not believe there were circumstances of imminent danger considering the nature of the workplace.  The Court of Appeal also dismissed the appeal.  They found that for automatic unfair dismissal it required ‘serious and imminent’ danger (which the employee reasonably believes).  As part of this, it is required that the danger must arise within the workplace.   There was nothing in principle about employees infecting each other and that took it outside of the scope of the legislation for automatic unfair dismissal on the grounds of health and safety.  The Court of Appeal did stress though that it would be for the Tribunal to decide on the facts as to whether the danger was serious and imminent.  The Court of Appeal did also note that there was nothing to suggest that the health and safety issue had to be solely a workplace issue but it could be an issue which is general but would have to have some effect in the workplace.

Practical Guidance for Employers:

Both the Tribunal and EAT decisions in this case have already been covered.  The Court of Appeal has upheld those decisions and has given some clarity in terms of the applicability of health and safety being used as a reason to ground a claim for automatic unfair dismissal.   Whilst the danger does not have to be solely in the workplace there must be some grounding that demonstrates that there is a serious and imminent risk within the workplace rather than it being general.  At the time (March 2020) there was a real sense of being in the unknown but considering the workplace (large and well ventilated) that was sufficient in ensuring that there was no serious or imminent risk to the claimant or other employees.  The Court does also outline that these cases will have to be taken on their facts so where such a situation arises one must look at whether there would be a reasonable belief that there is a danger which is serious and imminent in the workplace.
http://www.bailii.org/ew/cases/EWCA/Civ/2022/1659.html

ET case review - https://www.legal-island.com/articles/uk/case-law/2021/april/rodgers-v-leeds-laser-cutting-ltd-2021/

EAT case review - https://www.legal-island.com/articles/uk/case-law/2022/may/rodgers-v-leeds-laster-cutting-ltd-2022/