The Employment Appeal Tribunal (EAT) has considered whether an employee was automatically unfairly dismissed due to health and safety concerns when he refused to return to the workplace during the COVID-19 pandemic.
The claimant worked for the employer from June 2019 as a laser operator, in a large warehouse-type premises together with, typically, four other employees.
A risk assessment was carried out in March 2020, at the beginning of the COVID-19 pandemic. This recommended a range of measures such as social distancing, sanitising surfaces and staggering arrival/departure and break times.
The claimant told his line manager at the end of March that he had no alternative but to stay off work until the pandemic eased, as he had a clinically-vulnerable child as well as a baby potentially with underlying health problems. He obtained a self-isolation note via NHS 111 for the period 18 March to 3 April 2020, but made no further contact with the employer (and his employer likewise made no effort to contact the claimant).
On 24 April 2020, the claimant was sent his P45. He brought a claim of automatic unfair dismissal on health and safety grounds, claiming that he refused to attend the workplace due to the risk of serious and imminent danger (s100(1)(d) Employment Rights Act 1996). He also claimed that he was taking appropriate steps to protect himself and others from danger (s100(1)(e) ERA). His claim was rejected by the employment tribunal on the basis that the claimant’s concerns about COVID-19 were not directly attributable to the workplace. It further held that the steps taken by the claimant in absenting himself from work entirely were not appropriate. He appealed to the EAT.
The EAT has dismissed the claimant’s appeal. It decided that the claimant had genuine concerns about the COVID-19 pandemic, and particularly about the safety of his children, but this did not necessarily mean that he had a genuine belief in serious and imminent circumstances of danger such that it prevented him from returning to work.
The EAT pointed to a number of the tribunal’s findings that countered the claimant’s contention that serious and imminent circumstances of danger prevented him from returning to work: he had remained at work following the announcement of the national lockdown; he could maintain social distancing at work; he had not asked for a mask when they were made available; he had driven a friend to hospital by car (although both were wearing masks), and he had worked at a pub during the lockdown.
In addition, the EAT held that the tribunal was entitled to find that the claimant could have reasonably taken steps to avert the danger to himself and his children, both in and out of the workplace, such as by wearing a mask, socially distancing, sanitising and washing his hands.
We think that this is one of the first cases considering health and safety claims relating to COVID-19 to be heard by the EAT. The claimant in this case had not raised any specific concerns about his working environment and the tribunal was satisfied that the employer had taken appropriate steps to reduce the risk to its employees. A generalised concern about the risks posed by the COVID-19 pandemic was insufficient to establish a reasonable belief in serious and imminent workplace danger, as required under s100 ERA.
Previous claims for automatically unfair dismissal or a detriment relating to health and safety concerns in the context of COVID-19 have been successful where the employer has failed to take appropriate safety measures and has ignored concerns raised by employees. This decision will provide some comfort to employers who can demonstrate that they took appropriate health and safety measures based on a proper risk assessment.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2022.