Employment tribunal and court judgments | May 2022

Refusal to attend the workplace and dismissal – COVID-19

The Employment Appeal Tribunal (EAT) has considered the fairness of a COVID-19 related dismissal in the case of Rodgers v Leeds Laser Ltd that was heard in January 2022. Mr Rodgers refused to attend work due to COVID-19 health and safety concerns during the pandemic and was dismissed by his employers.

A claim for automatic unfair dismissal was brought as he claimed he had a reasonable belief of a serious and imminent danger in the workplace. This is a claim covering health and safety cases that can be brought without the requisite two or more years' service needed for an ordinary unfair dismissal claim.

The Tribunal considered that Mr Rodgers did not believe that there was a serious and imminent danger in the workplace, but believed that such danger was all around him, and that he intended to remain away from work in any event despite any workplace measures, until the lockdown had eased. The Tribunal did not find that Mr Rogers' beliefs were reasonable, recognising that despite Mr Rogers' own reservations, and claims that he had not left the house in 9 months, he had in fact decided to drive a friend to hospital during his self-isolation period. Further, it found that it was not an appropriate step for Mr Rodgers to absent himself from work completely where appropriate measures were in place and no complaints on danger were raised.

The EAT agreed with this reasoning and upheld the decision of the Tribunal. The EAT found that his case failed on the facts – (i) he could have socially distanced at work, (ii) there were measures in place to make the workplace as safe as possible (sanitizer etc.) and (iii) he had driven his friend to hospital and worked in a pub during this time. Equally, had he established such a reasonable belief of serious and imminent danger the Tribunal would still have been entitled to find he could have taken steps (mask wearing, sanitizing and distancing) to avoid the danger.

This will offer some comfort to employers who sought to provide safe working environments to their employees during the pandemic (in compliance with government guidelines relevant at the time). These types of claims will be fact-specific, but if the employer sought to reduce the danger, this will be a relevant factor in determining if an employee reasonably believed to be in imminent dangers preventing them attending the workplace.

A Tribunal has decided that a male employee, who was called a "bald c***" by a colleague, should succeed in a claim for harassment on the grounds of his sex. The Tribunal panel, who interestingly were all men with, by their own admission, pattern baldness of varying degrees, decided that calling the Claimant, Mr Finn, "bald" could amount to harassment because baldness is related to being male. Perhaps ironically, calling the Claimant a "c***" by itself did not constitute harassment.

Harassment is defined in s.26(1) Equality Act 2010 ("the Act") as "unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating the person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them". When deciding whether harassment has occurred, the Tribunal will need to consider the person's perception, whether it was reasonable for the conduct to have had the effect that the person says it had, and any other circumstances.

It is important to remember that sex harassment and sexual harassment, whilst similar in names, are different concepts. Sex harassment falls under the ambit of s.26(1) as above, whereas sexual harassment has its own definition of "unwanted conduct of a sexual nature" and extends to whether the person is treated less favourably because they either rejected or submitted to the conduct. The media, when reporting this case, have largely (and incorrectly) referred to this decision as sexual harassment, when it is important to highlight that it was sex harassment, and is therefore subject to a different legal test.

The important point for the Tribunal's consideration was whether baldness was "related to a relevant protected characteristic", in this case being male. It was decided that on balance, baldness is far more likely to occur in men than in women (although it does occur in women) and therefore it is reasonable to suggest that it related to his sex for the purpose of bringing a discrimination claim. The judgment (linked here) runs to 43 pages and goes into detail about how the decision was reached. Whilst the reasoning does appear to be sound, there is certainly some controversy in stating that baldness is "related" to being male (especially in light of a joke that was made at an awards ceremony recently regarding a woman with alopecia) and the fact that the panel were all male suffering from pattern baldness. It is certainly interesting to consider whether a differently constituted panel would have come to a different conclusion.

As with all cases that bring novel points that end up garnering media attention, the advice to employers is the same: bullying and harassment should not be tolerated in any form, and employers should make this clear through messaging and anti-bullying policies. Employers should also ensure that procedures are in place to deal with such matters, like disciplinary and grievance procedures, to minimise the risk of claims being brought.

Employee who took voluntary redundancy still able to bring unfair dismissal claim

In the case of White v HC-One Oval Ltd, an employee who took voluntary redundancy was capable of subsequently bringing an unfair dismissal claim. Ms White was provisionally selected for redundancy when the company she worked for announced a reduction in the workforce carrying out receptions and administrative jobs. Ms White requested voluntary redundancy but later alleged that the redundancy process was not genuine.

Ms White's reasoning surrounded the fact a full-time receptionist was recruited just before the process began but the two part-time receptionists were subsequently dismissed. The company argued she was fairly dismissed as she took redundancy voluntarily and the claim should be struck out on this basis due to no reasonable prospect of success.

However, although the tribunal did strike out the claim, the EAT subsequently found the tribunal should have considered whether the reason for redundancy and the process was fair. The fact the claimant took voluntary redundancy did not render the claim irrelevant or "fundamentally flawed", especially given the claimant was alleging the employer deliberately manufactured the position, suggesting a sham process. The case has been sent back to the tribunal for reconsideration, under a different judge.

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