The area of law in question here is s100 of the Employment Rights Act 1996 – and especially s100(1) (d):
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.
If someone is dismissed when exercising this right, they have the right to claim automatically unfair dismissal, whether or not they have two years of qualifying employment.
We have now seen a few cases where employees claim that Covid-19, and the risk of infection from it, comes within this section, allowing an employee to refuse to attend work (or leave work if they have come into work) in circumstances where they fear the danger exists and cannot be averted in any other way.
Essentially, for a claim under this section, this means that there are the following facts in place: -
This was recently re-examined in the Employment Appeal Tribunal in the case of Rodgers v Leeds Laser Cutting Ltd.
Mr Rodgers had refused to attend work during the first national lockdown to protect his vulnerable children – he was dismissed and claimed automatically unfair dismissal under the section above.
He lost in the Tribunal – with the Tribunal concluding that his actions in not taking other precautions outside work (wearing facemasks and working in a pub being two of them) did not support his argument.
In his appeal, which he also lost, the EAT accepted the principle that an employee could reasonably believe that there were serious and imminent circumstances of danger arising outside the workplace that prevented them from returning to it.
Whilst on the facts here Mr Rodgers failed, the principle was accepted that another employee might have so believed and thus succeeded in their claim. The EAT also agreed that the Tribunal was correct in stating that, even had Mr Rodgers been genuine, he could have been expected to take reasonable steps to avoid the danger – such as the mask-wearing and social distancing that has been advised.
Essentially, you should not dismiss out of hand an employee who is saying that they are afraid to come to work due to Covid (or indeed any other reason which they believe presents a danger).
The EAT explicitly confirmed that the danger in question may arise outside the workplace, not in it, so employers need to bear this in mind.
Mr Rodgers had vulnerable children, and there are still many people who remain isolated and fearful of going out due to their risk of Covid.
Employees with vulnerable families may be genuine in their fears, and simply dismissing this out of hand could land you with a claim for automatically unfair dismissal.
The Tribunal provided some help, by confirming that it was reasonable to expect Mr Rodgers to take precautions to make his journey safer, thus minimising his risk. Essentially, identifying a potential risk is not enough – the employee needed to do more before it became reasonable not to come to work. Therefore, when faced with an employee stating they are afraid to come to work, you should undertake the following checklist: