COVID-19: Court of Appeal decision on automatic unfair dismissal
6 January 2023
The Court of Appeal has handed down its decision in a case brought by an employee who claimed that he had been automatically unfairly dismissed for refusing to return to the workplace during the COVID-19 pandemic.
Facts of the case
The claimant was employed as a laser-operator from June 2019. At the beginning of the first period of lockdown due to the COVID-19 pandemic, his employer advised staff that measures were being put in place to protect the workforce, following a risk assessment conducted by an external consultant. The claimant’s role meant that he could observe social distancing for most of his tasks.
The claimant subsequently informed his employer that he was staying away from the workplace due to concerns about his vulnerable children. He obtained a self-isolation certificate through NHS 111 for the period from 28 March to 3 April.
Thereafter, the claimant made no further contact with his employer and he was dismissed on 26 April 2020. He brought a claim against his employer for automatic unfair dismissal on health and safety grounds, claiming that his refusal to attend work was due to the risk of serious and imminent danger (under section 100(1)(d) Employment Rights Act 1996), and that he was taking appropriate steps to protect himself and others from danger (section 100(1)(e) Employment Rights Act 1996). Claims brought under these provisions do not require the usual minimum of two years’ service for bringing an unfair dismissal claim.
Both the employment tribunal and the Employment Appeal Tribunal (EAT) rejected the claim (see our previous case summary). At the EAT, it was agreed that the claim fell solely to be considered under s100(1)(d) ERA. The EAT upheld the tribunal’s conclusion that while COVID-19 was capable of giving rise to circumstances of serious and imminent danger, it did not do so in this case. The claimant’s decision to stay away from the workplace was not directly linked to concerns about the workplace; his concerns related to the pandemic generally. He appealed to the Court of Appeal.
Court of Appeal decision
The Court dismissed the appeal, upholding the finding of the employment tribunal and the EAT that the claimant had not been automatically unfairly dismissed.
To fall within section 100(1)(d) ERA, the perceived danger must arise at the workplace and the employee must believe that they are subject to the danger as a result of being at the workplace. It did not apply if the perceived danger arose on the employee’s journey into work, which had been one of the claimant’s arguments.
The Court held that the tribunal had been entitled to find that, notwithstanding the risk of infection in the wider community, the claimant did not believe that there were circumstances of serious and imminent danger at his workplace.
The Court set out a five-stage approach for tribunals to adopt in cases where it was claimed that s100(1)(d) ERA applied:
- Did the employee believe that there were circumstances of serious and imminent danger at the workplace?
- Was that belief reasonable?
- Could they have reasonably averted that danger?
- Did they leave, or propose to leave or refuse to return to the workplace, because of the (perceived) serious and imminent danger?
- Was that the reason (or the principal reason) for the dismissal?
In the Court’s view, the wording of the legislation was better suited to dangers relating to the premises, equipment or system of working, rather than the risk of employees infecting each other with a disease, but there was nothing in principle that meant such a risk fell outside the scope of s100(1)(d) ERA. Whether it applied would depend on a consideration of the facts in each case.
The Birketts View
This is the first decision from the Court of Appeal on the application of s100(1) ERA 1996 to dismissals arising during the COVID-19 pandemic. It is helpful in clarifying that for section 100(1)(d) to apply, the risk of serious and imminent danger must arise at the workplace, even if there is a wider danger beyond the workplace. The fact that the employer had taken steps to mitigate the risk to its employees, and that the claimant could not show that he was at any greater risk when at work undertaking his duties, meant that his claim failed.
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 January 2023.