The Claimant in this case worked as a laser operator. During the first COVID 19 lockdown in March 2020 the Respondent assured its employees that measures were put in place to allow them to work safely. Social distancing was in place, masks were available and a health and safety risk assessment had been undertaken.
The Claimant was worried about infecting his children who suffered from sickle cell anaemia. He informed the Respondent that he would not be attending work until the lockdown was lifted. At the end of April, he was dismissed for non-attendance. The Claimant brought a case of automatic unfair dismissal to the Employment Tribunal.
Certain dismissals are regarded by the law as being automatically unfair. One such dismissal is if it is based on appropriate steps an employee takes to protect themselves from what they reasonably believe to be serious and imminent danger.
The Tribunal rejected his claim. The Claimant had not expressed what specifically he was concerned about in the workplace and had not done enough to demonstrate that he had a fear of “serious and imminent danger” at the workplace. He had taken no steps to try and avert any danger and had not raised any concerns before refusing to attend work. The Claimant tried to argue that the existence of the pandemic created the necessary level of danger but the Tribunal rejected this argument by stating this would lead to a situation where any employee could refuse to attend work simply because of the existence of COVID 19.
The Claimant appealed this decision but the Employment Appeal Tribunal dismissed the appeal. He then took his case to the Court of Appeal (CA) at which point the appeal was again dismissed.
The Claimant argued that the requisite level of danger did not just have to occur in the workplace but could also include the journey to work. This was not accepted by the CA. The employee must believe they are at risk of danger in the workplace. The CA concluded that the Claimant’s fears were based on the general danger of COVID 19 in the community and not the workplace.
This is the first case that has gone before the CA connecting this specific piece of legislation to the COVID 19 pandemic. The Court stressed that each case would turn on its own facts. It is possible that the requirement for serious and imminent danger could be met due to COVID 19, but this would depend on the specific circumstances of the case. It is also critical that the danger present itself at the workplace. But wise employers should ensure they make health and safety a priority and undertake the necessary risk assessments which would help to avoid claims of this nature.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.