Employees will be automatically unfairly dismissed if their dismissal is because they raised health and safety concerns.

From 31 May 2021 workers will also be protected from being subjected to a detriment linked to health and safety, which could include their engagement being terminated.

An employment tribunal has, for the first time, considered whether health and safety protections covered a dismissal related to alleged Coronavirus risk.

Background

Under sections 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA 1996) and (articles 132(1)(d) and (e) of the Employment Rights (Northern Ireland) Order 1996), employees are protected from dismissal if they exercise their right to leave the workplace and take steps to protect themselves, where they reasonably believe that there is a “serious and imminent danger”.

The test is a subjective one, in that the employee only has to reasonably believe there is such a risk; they do not need to prove that such a risk actually exists. Any such dismissal will be automatically unfair.

And employees do not need the two years’ service (one year in Northern Ireland) which is usually required in order to claim unfair dismissal.

As we highlighted in our previous Briefing, the risk of an automatically unfair dismissal linked to health and safety during the Coronavirus pandemic is likely to be low, provided that Covid secure guidance is followed - please see our Seven top questions on returning staff to work during coronavirus for further information.

In the case below, an employment tribunal looked at the question of whether an employee was entitled to claim automatically unfair dismissal after he raised concerns about returning to work during lockdown.

The facts

In Rodgers v Leeds Cutting Limited, the Claimant, Mr Rodgers, informed his manager that he would be staying away from his workplace “until the lockdown has eased” because he was worried about infecting his vulnerable children with Covid-19. Mr Rodgers’ children suffer from sickle cell anaemia. A month later, Mr Rodgers was dismissed.

Mr Rodgers did not have sufficient service to claim ordinary unfair dismissal.

Instead, he alleged that he had been automatically unfairly dismissed under the provisions of the ERA 1996 outlined above.

An employment tribunal found that the “reasonable belief” that there was a “serious and imminent danger” had to be judged on what was known when the relevant acts took place.

The tribunal did not find that Mr Rodger’s beliefs met the test that is required under section 100(1)(d) and (e) of the ERA 1996. In particular, the tribunal found the following.

  • There was a contradiction between Mr Rodgers’ concerns about work and his willingness to drive his friend to hospital when he was told to self-isolate.
  • Mr Rogers had not taken any steps to avert danger or raise concerns with his manager; he could not show there had been any such danger.
  • Mr Rodgers’ employer had implemented government guidance on taking precautions to prevent the spread of Coronavirus.

The tribunal did not accept that the risk of contracting Coronavirus is a “serious and imminent workplace danger” where the employer has taken safety precautions.

The tribunal’s view was that if it accepted that claims could be brought under sections 100(1)(d) and (e) of the ERA 1996, even where precautions had been taken, it would entitle all employees to bring such claims simply by virtue of the pandemic.

Comment

Whilst this decision is not binding on other tribunals – a different tribunal could come to a different view, on similar facts - it gives an indication of how tribunals are likely to approach health and safety dismissals for Covid related risks.

In particular, it underlines the importance of employers implementing appropriate Covid secure measures, as outlined in our previous article, Seven top questions on returning staff to work during coronavirus.

However, this case provides reassurance for employers of the approach that tribunals are likely to take to dismissals linked to a return to work during the pandemic.