Employment tribunal and court judgments | January 2023

Court of Appeal finds dismissal of employee for staying away from work during COVID-19 was not automatically unfair

The Court of Appeal in Rodgers v Leeds Laser Cutting Limited [2022] EWCA Civ 1659 dismissed Mr Rodgers' appeal that his dismissal was automatically unfair under section 100(1)(d) of the Employment Rights Act 1996 (the Act) for leaving his workplace and refusing to return to work during the COVID-19 pandemic.

Mr Rodgers worked as a laser operator at Leeds Laser Cutting Limited (the Respondent).

In summary, when the first lockdown occurred in March 2020, the Respondent engaged an external adviser to provide a risk assessment, as well as meeting with staff to discuss appropriate measures before implementing social distancing and handwashing measures for its premises. Masks were also made available to staff. Employees were advised that due to the measures in place, employees should work as normally as possible. Mr Rodgers did not raise any concerns and did not request a mask. However, on 29 March 2020, Mr Rodgers sent his line manager a text stating that he would be away from work whilst the lockdown was ongoing. Mr Rodgers was worried about infecting vulnerable family members. He obtained a self-isolation certificate from NHS 111 for the period of 28 March 2020 to 3 April 2022. There was no further contact between Mr Rodgers and the Respondent, and Mr Rodgers was subsequently dismissed on 26 April 2020 for being absent without leave or authorisation.

Mr Rodgers lodged a claim for automatic unfair dismissal, claiming that he had a reasonable belief of a serious and imminent danger in the workplace (being a claim that does not require the usual two years' service).

The Employment Tribunal dismissed Mr Rodger's claim on the grounds that:

• He did not establish a reasonable belief that a serious and imminent workplace danger existed.
• He had also not taken steps to try and avert any danger and did not speak to his line manager about his concerns other than the text message.
• The Respondent had followed the guidance issued by the government by implementing safety measures.
• His evidence did not show that his concerns related to the workplace, but more the pandemic in general.

The Tribunal rejected the Respondent's argument that section 100(1)(d) and (e) were not intended to be applied to the context of a pandemic.

Mr Rodgers appealed this decision to the EAT.

The Employment Appeal Tribunal (EAT) also dismissed the claim. The EAT, however, only considered the appeal under section 100(1)(d) of the Act, as it was accepted that leaving or refusing to return to the workplace could only fall under this section of the Act. The EAT sided with the Tribunal and confirmed that it had not erred in its judgment.

Mr Rodgers appealed this decision to the Court of Appeal. The Court of Appeal dismissed Mr Rodgers' appeal.

The Court of Appeal helpfully set out some questions for the Tribunal to consider when approaching claims under section 100(1)(d) of the Act:

1. Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
2. Was that belief reasonable? If so:
3. Could they reasonably have averted that danger? If not:
4. 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? If so:
5. Was that the reason (or principal reason) for the dismissal?

The Court found that Mr Rodgers' grounds failed on questions one and two, concluding that the appeal should be dismissed.

It is important, therefore, for employers to mitigate the potential risk of serious and imminent danger by providing safe working conditions for its employees as well as working with them if they believe there is a serious and imminent danger. Following government guidance and implementing good policies assist in mitigating this risk. Contact our employment team if you have any questions.

Reasonable adjustments in the workplace

The Employment Appeal Tribunal (EAT) in Preston v E.on Energy Solutions Ltd [2022] EAT 192 dismissed Mr Preston's appeal that E.on Energy Solutions Ltd (the Respondent) had a duty to make reasonable adjustments to help with Mr Preston's increased risk of suffering seizures when reading as a result of primary reading epilepsy.

The EAT held that the Respondent had no duty to make reasonable adjustments as the Respondent had not known, nor could reasonably have known of Mr Preston's epilepsy until after he went off sick due to an unrelated stress condition.

After Occupational Health advised that Mr Preston was fit to return to work and all reasonable adjustments had been made to enable him to do so, the Respondent dismissed Mr Preston because of his conduct in refusing to engage with the reasonable adjustments that had been put in place. The EAT found this to be justified for efficient absence management.

Employers only have a duty to provide reasonable adjustments after being made aware that an employee requires such adjustments; they will not have any duty to do so prior to being aware. In the event reasonable adjustments have been made, an employer has a right to dismiss employees who are fit to return to work with reasonable adjustments but fail to engage with the reasonable adjustments put in place.