Useful guidance is provided on s.100(1)(d) ERA 1996.
Background Facts
The Claimant Darren Rodgers worked for the Respondent, Leeds Laser Cutting, as a laser operator.
At the start of the Coronavirus pandemic in March 2020, the employer (via an external professional) carried out a Coronavirus risk assessment to identify areas of risk and put in place measures to protect its staff who worked in a large, ventilated factory space (about five employees in a space the size of half a football pitch). Despite this, on 27 March 2020 Mr Rodgers left the premises and subsequently made it clear to his employer he would not be returning until lockdown eased. A month later, having had no contact from Mr Rodgers, his employer terminated his employment.
Having worked for the business for less than two years, Mr Rodgers presented a claim for automatic unfair dismissal, asserting he had been unfairly dismissed for refusing to return to the workplace due to a serious and imminent danger, namely Coronavirus. He sought to justify his actions on account of having one child with siclecell disease who was therefore vulnerable to the virus, and a seven-month-old baby of which it was not known whether they had any underlying health conditions. It was however confirmed during the Tribunal hearing that he had chosen to drive a friend to hospital during a period he had been told by the NHS to self-isolate, and also taken up a job at a pub during the pandemic.
The Employment Tribunal dismissed the Claimant’s claim, finding that he did not believe there to be a serious and imminent danger in the workplace, but rather in the world at large and that his employer had taken reasonable measures to reduce the risk of infection in the workplace. The Tribunal found his evidence to be ‘confusing and contradictory’, holding that he would have been able to socially distance at work, and that, on the balance of probabilities, he had not asked for a mask and did not make any complaints to that end.
Mr Rodgers then appealed to the Employment Appeal Tribunal which dismissed his appeal and in doing so, upheld the judgment of the Leeds Employment Tribunal. As a consequence, the Claimant appealed to the Court of Appeal who agreed with the approach of the Tribunal at first instance, and therefore found for the Respondent. In other words, the Court of Appeal agreed that Mr Rodger’s dismissal was not in violation of s.100(1)(d) ERA.
What did the Court of Appeal Say?
Lord Justice Underhill’s lead judgment provides useful guidance on the correct interpretation of section 100(1)(d) of the Employment Rights Act 1996. The section reads:
‘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 work place’
The questions to be decided in a section 100(1)(d) claim are:
(i) Did the employee believe that there were circumstances of serious and imminent danger at the workplace?
(ii) Was that belief reasonable?
(iii) Could they reasonably have averted that danger?
(iv) Did they leave, or propose to leave, or refuse to return to the workplace or the relevant part because of the (perceived) serious and imminent danger?
(v) Was that the reason or principal reason for the dismissal?
In term of specific guidance:
Firstly, the Court rejected a literal interpretation of the section (i.e. one that required an employee to prove that there were in fact circumstances of danger before going on to consider whether the Claimant reasonably believed them to be serious and imminent) and adopted instead a purposive interpretation, namely that it is sufficient that the employee has a reasonable belief in the circumstances of danger as well as in its serious and imminence. Using the example discussed by the Court a successful claim under s100(1)(d) should not get side tracked into determining whether an escaping gas was as a matter of fact toxic or inert (perhaps requiring expert evidence) when the mischief captured by the sub-section is dismissing employees who reasonably believed the gas was toxic and the danger it represented serious and imminent.
Secondly the Court observed that whilst the sub-section does not say so explicitly it is necessarily implicit that it only applies where the employee has left the workplace (or proposed to or refused to return) because of the perceived danger.
Thirdly, the Court observed that the danger must arise at the workplace. If that were not the case the question of them leaving would not arise. It does not follow that it can only arise at the workplace. The Court saw nothing in the authorities of Harvest Press Ltd v McCaffrey [1999] IRLR 778 and Von Goetz v St George’s Healthcare NHS Trust [1997] EAT/1395/97 that supports the proposition that the provision applies to dangers elsewhere than at the workplace.
Fourthly there is nothing in principle about the risk to employees from infection from a disease (such as the Coronavirus) that takes it outside of the scope of s100(1)(d). The Tribunal will have to decide whether on the particular facts of each case it amounts to a serious and imminent danger.
Fifthly, an issue in the case was the question of whether the risk of catching Coronavirus was in the community ‘at large’ or specifically within the workplace. The Trial Judge found that although the Claimant did believe that there was a serious and imminent danger at large, he did not believe that there was such a danger in the workplace. The Court rejected the Claimant’s submission that the Judge had interpreted s100(1)(d) as a matter of law to apply only to dangers that arose in the workplace but had instead made a finding of fact about what the Claimant thought was the risk of infection in the workplace as opposed to the risk elsewhere in the community, concluding that the Claimant did not seriously feel at risk in the workplace.
Sixthly, there is nothing in the language of s100(1)(d) that requires the danger to be exclusively within the workplace. It is the purpose of the statute that employees should be protected from dismissal if they absent themselves from work in order to avoid a danger in the workplace. It is immaterial if the same danger may be present outside that workplace, for example on a bus or in the supermarket.
The Respondent was represented by Jonathan Gidney, instructed by Karin Henson of Aeris Employment Law. Chevan Ilangaratne assisted Jonathan with the preparation of written arguments for this appeal.
You can find a copy of judgment here.
