Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
The claimant commenced work with the respondent in June 2019. When the Coronavirus Pandemic arose in early 2020 the respondent had an external professional carry out a risk assessment. This recommended social distancing, staggering start times and sanitising surfaces. The issue in this case is that on 29th March 2020 the claimant emailed his line manager stating that he had to stay off work due to the pandemic. This was on the basis that he had a child with sickle cell disease as well as a seven month old child who could have underlying health issues.
The claimant received a self-isolation note from NHS covering 28th March to 3rd April. The claimant continued to stay off work after that period and on 24th April 2020 he was sent his P45. Considering that the claimant did not have the requisite period of 2 years’ continuous service (only one year required in NI) he then brought a claim for automatic unfair dismissal based upon health and safety grounds. The Tribunal, at first instance, dismissed the claim, stating that the concerns were general rather than being attributable to the workplace. The claimant appealed this to the EAT.
The EAT stated that when it came to health and safety grounds the Coronavirus pandemic did create some circumstances of danger at work, so that element was satisfied. It then had to be shown that the risk was serious and imminent and that requires reasonable belief on the part of the claimant. Having heard the evidence, the Tribunal had decided that the claimant felt the risk was the same at work as it was generally.
The EAT agreed with this, as well as the fact that the workplace was large and social distancing could be maintained. Additionally, the claimant was found to have driven a friend to hospital when he was supposed to be self-isolating and he was also working in a pub during the lockdown periods. As a result, the appeal was dismissed.
Practical Lessons
This case demonstrates the use of ‘health and safety’ concerns when it comes to the Coronavirus pandemic to ground a claim of automatically unfair dismissal. One limb of this is that it requires the employee to reasonably believe that he was in serious and imminent danger in work. The fact that this existed in a widespread way and the claimant had driven others during a period of self-isolation and had even worked elsewhere was seen to demonstrate that there was not such a particular concern when it came to the workplace.
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-d-rodgers-v-leeds-laser-cutting-ltd-2022-eat-69
A review of the Industrial Tribunal case is available here.
Continue reading
We help hundreds of people like you understand how the latest changes in employment law impact your business.
Please log in to view the full article.
What you'll get:
- Help understand the ramifications of each important case from NI, GB and Europe
- Ensure your organisation's policies and procedures are fully compliant with NI law
- 24/7 access to all the content in the Legal Island Vault for research case law and HR issues
- Receive free preliminary advice on workplace issues from the employment team
Already a subscriber? Log in now or start a free trial
