ON THE CASE - Health and safety dismissal

The health and safety of individuals at work is protected in a number of ways, both under statute and the common law.

Employers must protect the health and safety of employees and workers in accordance with the Health and Safety at Work etc. Act 1974.

Under the common law, employers also have a duty of care to protect their employees’ health and safety ‘during the course’ of their employment.

This protection is set out at s44 Employment Rights Act 1996 (ERA) (not to suffer any detriment for health and safety reasons) which applied to both employees and workers.

Employees are also protected under s100 ERA from dismissal (if dismissed, the dismissal will be ‘automatically unfair’).

The law is clear that a worker or employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by their employer, and an employee who is dismissed shall be regarded as unfairly dismissed, if the detriment or dismissal is on the ground that:

• In circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
• In circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.
• Whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.
• An employee is not to be regarded as having been subjected to any detriment if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did.

If an employee does not have enough qualifying service to bring a claim of ‘ordinary’ unfair dismissal, and claims that the dismissal was for an automatically unfair reason (a day-one protection) then they will bear the burden of proof to show that the dismissal was indeed for that automatically unfair reason.

The case below of Rodgers v Leeds Laser Cutting Ltd (2022),  was decided in the Respondent’s favour.

However, an appeal was allowed to the Court of Appeal as the  EAT did not rule out a claim being brought under s100 if the danger was not brought about just by the workplace, but other factors as well.

The appeal was heard on 3 November 2022, and we await the outcome.

To remind you of the facts of the case, during the first national Covid-19 lockdown in 2020, Rodgers refused to attend work.  His reason was that he had vulnerable children who could become very ill if they caught Covid-19.  Rodgers was dismissed for his refusal to return and made an ET claim that his dismissal was automatically unfair because he had exercised his right not to return to the workplace in accordance with s100 ERA. 

The ET dismissed Rodgers claim because although he had general concerns about Covid-19 they were not directly attributable to the workplace.  The employer’s workspace is large (described as the size of half of a small football pitch), which at the relevant time typically had five people working on the shop floor. 

Rodgers had apparently not worn a facemask, had left his home during self-isolation, and worked in a pub during lockdown.  These facts did not support his assertion that there were circumstances of danger which he believed were serious and imminent, either at work or at large. 

Rodgers appealed, but the EAT dismissed the appeal.  While accepting that, in principle, an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented them from returning to the workplace, on the facts of this case, the EAT agreed with the ET.  Even if the ET had been wrong about this, it had been entitled to find that Rodgers could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands.