In the case below of Rodgers v Leeds Laser Cutting Ltd (2022) the Court of Appeal (CA) unanimously dismissed Rodgers’ appeal, on the grounds that the ET’s reasoning was sound.
During the first Covid-19 lockdown in 2020, Rodgers refused to attend work. His stated that he had vulnerable children who could become very ill if they caught Covid-19. Rodgers was eventually dismissed for his refusal to return to the workplace. He subsequently claimed 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 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.
The Employment Appeal Tribunal (EAT) dismissed his appeal.
When dismissing Rodgers’ appeal the CA provided some guidance on the correct interpretation of s100(1)(d). It began by making the point that, whilst it refers to ‘circumstances of danger’, there need not objectively be a danger.
The CA held that the ET Judge had not erred in applying the law incorrectly, but had instead merely found, as a matter of fact, that Rodgers did not reasonably believe that there was a serious and imminent danger of infection in the workplace, even when holding a reasonable belief that there was a serious and imminent danger in the community at large.
The CA also rejected Rodgers’ submission that the protection under s100 could apply where employees perceived the danger arose on their journey to work. This was highly pertinent in the context of Covid-19 as people perceived the danger to be increased on places like public transport. The CA pointed out that the employee must believe that they are subject to the danger as a result of being at the workplace: if that were not the case, the question of them leaving the workplace would not arise.