With lockdown restrictions easing and a government roadmap set out for the reopening of retail and workplaces, employers are now turning their attention to how the process of how such a return will work in practice. With a reported record number of employers willing to consider a truly flexible working pattern for employees moving forward, the “new normal” will certainly look a lot different to what we are used to.
For those businesses that require physical attendance in the workplace, concerns about health and safety and employee’s refusal to return in the current climate are high on the agenda of management and HR professionals. Whilst guidance from the Health and Safety Executive is readily available, concerns about reluctant employees are understandable. It is with some interest, therefore, that a recent employment tribunal judgment provided guidance on employers’ risks should an employee not wish to attend the workplace owing to health and safety reasons.
Rodgers v Leeds Laser Cutting Ltd
In the above case, Mr Rodgers had worked for the Respondent as a laser operator for approximately 9 months. The workspace at the Respondent’s premises was large, described as half the size of a football field, with typically 5 people working on the floor at any given time. Upon the government announcing the first national lockdown in March 2020, the Respondent produced a communication stating that they would be staying open and carrying out a risk assessment with measures implemented to allow the business to operate as normal.
After coming down with a cough shortly after the government lockdown announcement, Mr Rodgers text his manager stating that he had no option but to stay off “until the lockdown has eased”. The Claimant was also required to self isolate during this period, however, did break this to drive a friend to hospital and had later worked in a pub.
For reasons not provided for in the judgment, Mr Rodgers was dismissed the following month. A quoted text message in the judgment from Mr Rodgers to his manager stated that “I have been told iv (sic) been sacked for self isolating”.
Mr Rodgers brought a claim against the Respondent in relation to his dismissal. The tribunal acknowledged that Mr Rodgers was unable to claim the usual unfair dismissal owing to him lacking two years service, however he was able to bring a claim for “automatic unfair dismissal” on health and safety grounds.
Mr Rodgers highlighted S100(1)(d)&(e) Employment Rights Act 1996 which states that an individual is unfairly dismissed if the reason (or, if more than one, the principal reason) for his dismissal was:
(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, or
(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.
In coming to its judgment, the tribunal went through the above test and found that Mr Rodgers’ belief "of serious and imminent danger" to be unreasonable owing to the measures the Respondent had put in place. In addition, the tribunal found that Mr Rodgers "could reasonably have been expected to avert any dangers, by abiding by the guidance at that time, namely by socially distancing within the large, open workspace, by using additional personal protective equipment if he wished to do so, and by regularly washing/sanitising his hands". As a result of these findings, Mr Rodgers’ claims failed.
In a key part of the tribunal’s judgment, Employment Judge Anderson stated that Mr Rodger’s counsel… “….submitted that even if there had there been measures in place at the time, there was still a reasonable belief held by the Claimant of a serious and imminent danger, which he could not avert. I am not persuaded that this is a correct interpretation of the provisions. To accept this submission would essentially be to accept that even with safety precautions in place, the very existence of the virus creates circumstances of serious and imminent danger, which cannot be averted. This could lead to any employee relying on s100(d) or (e) to refuse to work in any circumstances simply by virtue of the pandemic.”
The case is a good reminder to employers that risk assessments and health and safety measures matter and could be the difference in successfully defending a claim and facing a large pay out in tribunal. It is also a warning to employers that what may at first appear to be a minor issue, can quickly evolve into a litigious matter leading to potential adverse publicity depending on the outcome.
What does this mean for you or your business?
The above claim was very fact specific and as it is a first instance case, a different tribunal could come to a different outcome. In particular, the tribunal were quick to point out that a similar claim could, in different circumstances, be successful in future. Employers should therefore treat any refusal to attend the workplace very seriously and take advice where necessary.
What do you need to be doing now?
It is likely that all employers will have already carried out a risk assessment over the course of the last year, however it is important that this is revisited and consideration given to the numbers of individuals due to return. A good risk assessment, made available upon request to employees, will reassure individuals that the workplace is safe to return to and should avoid any allegations of a breach of obligation to look after the health and safety of employees. If you have not yet undertaken a risk assessment, the HSE has produced a template which is available here.
The judgment on Rodgers v Leeds Laser Cutting is available here.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.