Back in May last year we posted a piece on the protections available to employees who choose to leave their workplace because of serious health and safety fears. As the RTO process begins to warm up, here is an Employment Tribunal case (possibly the first, but certainly not the last) which looks at the practical application of those protections in a little more detail.
Section 100 Employment Rights Act 1996 makes automatically unfair the dismissal of an employee whose employment is terminated because “in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he left or proposed to leave or refused to return to his workplace” or he “brought to his employer’s attention by reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety”.
The attraction of this provision for claimants is that it doesn’t require the usual two years’ service for an unfair dismissal claim. It was on that basis that it came up in Rodgers –v- Leeds Laser Cutting Limited last month. It seems fairly clear that if he did have the necessary two years’ service, Rodgers would have been found unfairly dismissed: “…There are many comments the Tribunal could make about …..the way in which the Respondent conducted itself and the manner of the dismissal”, said the Leeds ET cryptically but with unmistakeable disapproval. However, issues of process would be relevant only to an “ordinary” unfair dismissal claim, which Rodgers could not make. His claim therefore stood or fell on whether he could bring his facts within section 100.
Mr Rodgers worked as a laser cutter, one of five people in a large shop floor variously described as “half the size of a football pitch” or 12-14,000 square feet (approximately 1200 square metres). In March 2020 one of his colleagues developed Covid systems and was sent home to self-isolate. Rodgers had been working with that colleague, himself developed a cough (although he initially attributed this to the temperature and dust in the workplace) and decided to take himself off home and stay there to do the same. When chased by his manager for his no-shows thereafter, Rodgers responded that he would not be returning “until the lockdown has eased” because he had two very young children, one quite unwell, about whom the ET concluded that he was entirely justifiably concerned.
Neither party then took any steps to contact the other about any possible return, sick pay, furlough or anything else. Perhaps that was part of what the ET had in mind by its slighting reference to the Respondent’s conduct. If an employee does run for the hills to escape alleged covid risks in the workplace, ignoring them is about the least sensible thing the employer can do – instead there should be a reasonably rigorous and persistent enquiry of him to find out specifically what his concerns are as a necessary precursor (hopefully) to remedying them. That didn’t happen here and instead in late April Rodgers was dismissed without prior consultation for his non-attendance. Given his seemingly compelling family reasons for not coming in, did that bring him within section 100?
The ET undertook a useful dissection of section 100 to help it apply the facts to the law. Obviously this case is fact-specific to a large extent, but the ET’s approach is helpful to illuminate (not bind – this is the ET only) possible future cases.
- Did Rodgers reasonably believe that conditions at his workplace created circumstances of serious and imminent danger?
There are two parts to this – did Rodgers believe that at all, and if he did, was that belief objectively reasonable?
In considering both questions the ET was careful to note that both the fact and reasonableness of any such belief had to be seen against the circumstances at that time (March 2020), so without the benefit of learnings about the virus, protective measures and the vaccination arising since then.
The ET found against Rodgers on both counts. He clearly did believe Coronavirus to represent circumstances of danger, but that it was all around him, and not specifically in the workplace. In any case, he had not been so bothered about self-isolating that it had stopped him driving a friend to hospital, thereby puncturing his claim not to have left the house for 3 months because of his anxieties about infecting his kids. In addition, Rodgers accepted in evidence that Leeds Laser had taken all appropriate measures to reduce the risk of infection and that for such a small number of employees in such a cavernous space, social distancing was not difficult (a 2-metre radius only requires about 12-13 square metres, so there was more than room to spare). He also conceded that even as early as March 2020 there had been directions given to the workforce about hand-washing and social distancing which had been broadly ignored by the five of them and so had been repeated.
This finding supports the view we have expressed in earlier posts, i.e. that if a workplace complies with Government Covid-secure guidelines, it will be very difficult for an employee reasonably to claim that it places him in circumstances of serious and imminent danger.
- Could Rodgers reasonably have been expected to avert the danger?
Yes. He could have spoken to his employer about his concerns either generally or in relation to specific tasks he saw as particularly risky, but did not do so. He could have pointed out that the mask-dispenser was empty, but did not. He could easily social-distance within the space available and had ready access to hand-washing facilities plus training on why those precautions necessary.
The ET’s conclusion makes it clear that the question of whether an employee falls within section 100 (or the equivalent provisions around sub-dismissal detriment in section 44) must be answered on the basis that the employee takes reasonable precautions to protect himself. The existence of a workplace risk, perhaps even a serious one, may not justify his walking out if he has the means through education and equipment to protect himself against it. It also reduces the chances of an employee being able to rely on sections 44 or 100 if he has not first raised the issue with his employer to no avail.
- Did Rodgers take appropriate steps to protect himself and others from the danger?
On the facts, no, since he did not make any complaint pre-departure and could have significantly mitigated the danger by social distancing, etc. in the workplace. However, do note that the ET was fully willing to accept in principle that the protection of family members, not just colleagues, could fall within section 100.
- Did Rodgers take appropriate steps to communicate those dangerous workplace circumstances to his employer by appropriate means?
No. There had been no communications about workplace circumstances by any means, let alone anything appropriate. His reference to staying away “until the lockdown eases” clearly related to the virus in general, rather than to any specific workplace circumstances.
So for your returning employees, obtaining the protections of sections 44 or 100 is not just a question of expressing unspecific nervousness about the working environment and then pushing off home for the duration. The employee will usually need to be clear with the employer first about specifically what he sees as amiss with its covid-secure measures and give the employer a chance to fix it. He must also be willing to take all the individual precautions recommended by the guidance and to comply with all reasonable management instructions around hygiene and social distancing, one-way corridors, masks, etc. This is not just about establishing that there is a risk (there is risk in every workplace) but a risk which is serious and imminent despite anything he himself could do to reduce it.
At some point someone will probably argue that the most obvious means of reducing any risk in the workplace is to get oneself vaccinated (medical exemptions aside) and therefore that anyone who doesn’t do that can’t seek shelter under sections 44 and 100. This isn’t that case but it would be an interesting debate. Answers on a postcard, please.