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.