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It has been over one year now since the COVID-19 pandemic turned the UK, and the world, upside down. It has brought challenges in all areas of life, with employment law being no exception. Many Employment Tribunal (ET) cases have arisen as a result of the pandemic, and I am sure that there will be many more to come. Automatically unfair dismissal is the subject of one of the ET’s latest COVID-19 cases.
To refresh, automatically unfair dismissal is different from “ordinary” unfair dismissal in that employees do not require a minimum of 2 years’ continuous service to bring such a claim. It is a niche type of claim that can be brought from day one of employment. On 1 March 2021, the ET handed down its judgement in the case of Rodgers v Leeds Laser Cutting Ltd ET1803829/02020. This case considered whether the dismissal of an employee, who informed his manager that he would not return to work until after lockdown ended due to fears of his vulnerable children contracting COVID-19, was automatically unfair.
Mr Rodgers (the Claimant) commenced his employment with Leeds Laser Cutting Ltd (the Respondent) on 14 June 2019. On 24 March 2020, one day after the UK went into lockdown, the Respondent issued an ‘employee communication’, advising that the business would remain open and that they were putting measures in place to allow their staff to work in as normal conditions as possible. The Respondent, by that time, already had COVID-19 measures in place, including the need for regular handwashing and social distancing.
On 29 March 2020, the Claimant sent a text message to his employer advising that he would not be able to work until the lockdown had eased. The Claimant did not want to risk infecting his vulnerable children with COVID-19. His employer acknowledged the text message, but proceeded to dismiss the Claimant less than one month later.
As the Claimant had under 2 years’ continuous service, he was unable to raise a claim for “ordinary” unfair dismissal. He did, however, raise a claim in the ET for automatically unfair dismissal on the grounds of exercising his rights under s.100(1)(d) and (e) of the Employment Rights Act 1996 (ERA 1996). As a recap, these sections relate to Health and Safety cases of dismissal.
The ET considered s.100(1)(d) and (e) in turn, discussing the need for a factual analysis of whether there was a reasonable belief that a serious and imminent workplace danger was imposed by COVID-19. When looking at the facts, the ET held that such a belief could not be established. The ET found that the Claimant’s concerns relative to COVID-19 were more general and not solely confined to the workplace.
With regard to workplace danger, the ET could not find in favour of the Claimant, due to the Claimant firstly neglecting to mention his concerns to his employer and secondly neglecting to prove that there was any such workplace danger. The ET was, however, greatly persuaded by the Respondent’s submissions highlighting that they had strategic COVID-19 preventative measures in place long before the national lockdown or the ‘employee communication’ sent on 24 March 2020.
Therefore, the ET dismissed the claim for automatically unfair dismissal. In one point, the ET stated that if a mere concern regarding the existence of COVID-19 was in itself enough to raise a claim under s.100(1)(d) and (e), then any employee could refuse to work solely due to the pandemic.
For employers, this case highlights the importance of having COVID-19 safety measures in place and following the Government guidance on how to make your workplace ‘COVID safe’. Doing so may just save your chances of having a successful s.100 claim being made against you!
If you need any advice regarding dismissal matters, please get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Blythe Petrie, Trainee Solicitor
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