Dec 20
The claimant was employed by the respondent as a laser operator. After a colleague displayed symptoms of Covid-19, a week before the first national lockdown, and was sent home to self-isolate, the claimant decided to stay off work until lockdown had eased, as he had a child who was at high risk and a young baby. He was subsequently dismissed and made a complaint of unfair dismissal under section 100(1)(d) or (e) of the Employment Rights Act 1996, claiming that the reason for his dismissal was that he had left his place of work because he reasonably believed there were circumstances of danger, which he believed to be serious and imminent and which he could not reasonably have been expected to avert. An employment tribunal found that the claimant had worked in a large warehouse-type space with typically five employees working there and that it was possible for them to maintain a social distance; that the claimant had not raised any concerns about circumstances of imminent danger within the work place; and that his decision to stay off work was linked to general concerns about the virus, not to his working conditions. It also noted that, while self-isolating, he had driven a friend to hospital and, during the pandemic, had worked in a pub. Dismissing the complaint, the tribunal found that, while conditions pertaining to Covid-19 could potentially amount to circumstances of serious and imminent danger in principle, it was not a case where the claimant had refused to return to his place of work, or any dangerous part of his place of work, due to the conditions in that environment; and, further, that the claimant could reasonably have been expected to avert any danger by abiding by the guidance at the time and refusing to undertake any specific tasks he felt would remove his ability to do so. The claimant appealed to the Employment Appeal Tribunal on the ground that the tribunal had erred in concluding that, because his belief was one of a serious and imminent danger “at large”, his belief that his work place presented a serious and imminent danger was not objectively reasonable. The Employment Appeal Tribunal dismissed his appeal.
On the claimant’s further appeal—
Held, appeal dismissed. The questions which an employment tribunal had to decide in a case under section 100(1)(d) of the Employment Rights Act 1996 were: (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? It was clear that at the centre of the judge’s reasoning, particularly on question (1), was a distinction which she made between (a) the claimant believing that the danger of infection with Covid-19 was “all around” or “in the community at large”, described as a “general” concern and (b) his believing that there was such a danger “specifically within the workplace”, or “directly attributable to the workplace”, as a result of the “working conditions” there. The judge’s finding that the claimant had not believed that there was a serious and imminent danger at the workplace was based on her finding that, although he had believed that there was a serious and imminent danger at large, he had not believed that there was such a danger specific to the workplace. It was necessary to establish what the judge intended by that distinction. Reading the reasons as a whole, it seemed adequately clear that the distinction intended by the judge depended not on a proposition of law but on a factual finding about what the claimant thought was the risk of infection at the workplace, as opposed to what it might be elsewhere in the community. Accordingly the claimant had failed to impugn the judge’s finding that he had not believed that there was a serious and imminent danger in the workplace ( paras 21, 45–47, 58, 60, 63, 65, 66).
Per curiam (i) Section 100(1)(d) should be construed purposively rather than literally and it is sufficient that the employee has a (reasonable) belief in the existence of the danger as well as in its seriousness and imminence. Although the subsection does not say so in terms, it is necessarily implicit that it only applies where the employee has left the workplace (or proposes to do so, or has not returned) because of the perceived danger rather than for some other reason. It is quite clear that the perceived danger must arise at the workplace – or, to put the same thing rather more fully, the employee must believe that they are subject to the danger as a result of being at the workplace: if that were not the case, the question of them leaving the workplace would not arise (paras 17–19, 65, 66).
(ii) This is the first appeal to reach this court on the application of section 100(1) of the 1996 Act to dismissals related to the Covid-19 pandemic. The circumstances in which claims under section 100 have arisen—as much under subsection (1)(e) as under subsection (1)(d)—are very various. It would be unsafe to attempt any more general guidance than the few particular issues of wider application raised in the present case (paras 64, 65, 66).
Rad Kohanzad and Anna Dannreuther (instructed by Atkinson Rose LLP) for the claimant.
Jonathan Gidney (instructed by Aeris Employment Law, Redditch) for the respondent.