Employment law specialist, Dionne Dury reviews the key employment law case - Rodgers v Leeds Laser Cutting Ltd concerning automatic unfair dismissal on grounds of health and safety.
This pandemic related case concerned an employee dismissed from his employment when he did not have the requisite service for an ordinary unfair dismissal claim. Mr Rodgers brought a claim for automatic unfair dismissal under section 100(1)(d) and (e) ERA.96 which states that if the sole or principal reason for dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent:
- He left or refused to return to his place of work (or proposed to do so), it not being reasonable to expect him to avert the danger; and/or
- He took (or proposed to take) appropriate steps to protect himself or others from the danger.
The Employment Tribunal dismissed the claim. Mr Rodgers accepted that it was generally possible to socially distance from colleagues and LLC had conducted a proper risk assessment and taken steps to implement it, including regular reminders about social distancing and handwashing and providing suitable facilities. Further, Mr Rodgers’ text referred to staying away from work until the lockdown had eased, as opposed to when improvements were made to the workplace.
The Employment Tribunal found that, even if Mr Rodgers had a genuine belief of circumstances of serious and imminent danger, it would not have been reasonable taking into account the above factors and the knowledge of COVID-19 at the time. Further, to the extent that there were circumstances of danger, Mr Rodgers could reasonably have been expected to avert them by, for example, social distancing, using PPE if he wished to do so and regularly handwashing.
Watch this space: Permission for Mr Rodgers to appeal has been given and the EAT hearing is on 12 April 2022. This is the first pandemic case to go to appeal and the EAT decision will be awaited with interest.
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