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Is Covid-19 a serious and imminent danger for the purpose of the Employment Rights Act?

Covid-19 and Employment Rights Act | HR Solutions

Coronavirus related employment claims can include breach of contract and discrimination in respect of Furlough, both in terms of the selection and process in managing the scheme and unfair dismissal claims in respect of redundancy selection and failure to consult.  Some health and safety claims can also be lodged at an employment tribunal, such as where there has been a refusal to attend work due to perceived “serious and imminent risk” from the virus as well as whistleblowing claims.  These types of claims though would be brought under the Employment Rights Act.  Read the case law update below for details of the case ruling which addresses a Covid-19 related claim.

Covid-19 Concerns

Is Covid-19 a serious and imminent danger for the purpose of the Employment Rights Act?

This is the million-dollar question.

The Employment Rights Act 1996 protects employees from suffering a detriment or to be unfairly dismissed.  Normally, an employee requires 2 years’ service to claim unfair dismissal, however there are many exceptions, one of which is when a dismissal is in connection with health and safety and refusing to work due to a serious and imminent threat.  It does not matter what the employer believes, it is what the employee believes that is important.

The Case – Mr Rodgers v Leeds Laser Cutting Limited

This case deals with the matter of general concerns about Covid-19.  Back in March 2020, the start of the pandemic and national lockdown, Leeds Laser Cutting Ltd implemented various measures in response to the pandemic to make the workplace Covid-secure, as far as was reasonably practicable.  These measures included social distancing, additional cleaning and hygiene measures and staggering arrival times.  The workplace also ensured there was clear employee communication throughout the workplace to support the new measures.

A colleague of Mr Rodgers started to display Covid-19 symptoms and was forced to self-isolate which then led Mr Rodgers saying he would not be returning to work until the lockdown eased.  Mr Rodgers had a child suffering with sickle cell disease and a 7-month-old baby.  He believed that his leaving work and refusal to return were appropriate steps to protect him and his family, and therefore in line with his rights under the Employment Rights Act.

Mr Rodgers went on to be dismissed (it is unclear how and what procedure was used) and brought a claim for an unfair dismissal in connection with sections 44 and 100 of the Employment Rights Act which gives employees protection from being subject to a detriment or being dismissed for exercising their right to leave the workplace.

The employment tribunal considered the fact that the employer had taken several steps to reduce the risk of transmission and the lack of evidence by Mr Rodgers in showing that the workplace posed an imminent and serious risk.  The claim was therefore dismissed with the tribunal finding that the danger in the workplace was no more than that in general society.  Mr Rogers had also agreed that the workplace was possibly safer than the community at large.  The tribunal did not feel that the circumstances relating to the walk out constituted circumstances of danger.

HR Learning Points

This is a case which was limited to raising a claim for automatic unfair dismissal due to having less than 2 year service.  It is not clear how Mr Rodgers was dismissed, and whether a fair process was carried out.  Potentially, the outcome of this case could have been different, had he been able to qualify for ordinary unfair dismissal where the process carried out can lead to a ruling of an unfair dismissal.

Covid-19 Risk Assessment

HR Solutions would recommend that all measures introduced come about because of the Covid-19 risk assessment. You can access our Covid-19 risk assessment template here.

Return to Work Webinar

Watch our recently recorded webinar, on demand, to find out how to manage a safe return to work after lockdown.

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