Introduction

Hello and welcome to our case of the week. We have another Covid case today. This one raises some interesting questions about employers’ liability in respects of a safe working environment.

Facts

The Claimant (Mr Rodgers) was employed by the Respondent (Leeds Laser Cutting Limited). He worked in a large warehouse with around 5 other people. Following the announcement of the first ‘lockdown’, the Respondent implemented appropriate measures to restrict the spread of Covid-19. They sent out an employee communication on 24th March saying, “we are putting measures in place to allow us to work as normal.” The tribunal found that these measures lived up to generally accepted standards.

On 29th March, the Claimant text the Respondent saying:

“unfortunately I have no alternative but to stay off work until the lockdown has eased. I have a child of high risk as he has siclecell (sic) & would be extremely poorly if he got the virus & also a 7-month-old baby that we don’t know if he has any underlying health problems yet”

The Respondent replied, “ok mate, look after yourselves”.

The tribunal was not overly clear on the facts here, but apparently the next communication between R and C was on 24th April, when the Claimant said:

“just been told I’ve been sacked for self-isolating, could you please send it to me in writing or by email…with an explanation of why my employment ended with the date it ended. I also need my p45 sending out as soon as possible”.

The Claimant did not have 2 years’ service. Regular readers will know that this means his employment rights were limited. He submitted a claim for automatic unfair dismissal under S100 Employment Rights Act 1996, which does not require 2 years’ service.

The law

The law is fairly straightforward. The section says:

  • An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

……

  1. 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
  2. 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 order for the Claimant to establish his case, he had to prove that:

  • there were circumstances of danger;
  • he reasonably believed these to be serious and imminent;
  • he took (or proposed to take) appropriate steps to protect himself or other persons from danger.

Point number 1 is deceptively tricky. The argument could be made that there are circumstances of danger everywhere at the moment, and therefore there are circumstances of danger in the Claimant’s workplace. However, the tribunal reminded us that in order for this section to be made out, the level of danger in the workplace has to transcend the ordinary danger within society. It is not enough that there is a heightened sense of danger within society and therefore everywhere is dangerous. The workplace must be particularly dangerous. The tribunal deferred to the Claimant’s own comments in this regard: he said his workplace was “possibly safer than the community at large”. It did therefore not transcend the ordinary danger within society (if anything it was less dangerous) and could not be a “circumstance of danger”.

Even if the tribunal had found a circumstance of danger, it held that it would be unreasonable for the Claimant to consider it serious and imminent; the Respondent had thorough systems in place to prevent the spread of Covid-19.

The Claimant maintained that he took appropriate steps to protect himself from danger (self-isolating at home and not returning to work). The tribunal considered this inappropriate. The Claimant could have maintained adequate social distancing at the Respondent’s premises, which would have been a more appropriate means of protecting himself from the circumstance of danger (if there was one).

Takeaway point

This case demonstrates the complexity of such issues. An argument could be proposed that there was a circumstance of danger (the proliferation of Covid-19 through society) and it was reasonable to consider this serious and imminent. The Claimant’s case no doubt fell down on his response to the perceived threat. The steps he took to protect himself were not appropriate. The business had thorough measures in place to protect its employees and cannot be made liable for the particularly risk-averse nature of one employee. Ultimately, if businesses adhere to government guidelines, they are unlikely to be made liable for this type of claim.