Refusal to attend the workplace for health and safety reasons

Regular readers will recall the case of Rodgers v Leeds Laser Cutting Ltd from April 2021. Our coverage of the employment tribunal case can be found here. 

Mr Rodgers worked for the Respondent as a laser operator for approximately 9 months. Upon the government announcing the first national lockdown in March 2020, the Respondent produced a communication stating that they would be staying open and carrying out risk assessments with measures implemented to allow the business to operate as normal. Mr Rodgers sent a text message to his manager stating that he had no option but to stay off “until the lockdown has eased”. During this period the Claimant was required to self isolate, however, he did break this to drive a friend to hospital and had later worked in a pub.

Mr Rodgers was ultimately dismissed for failing to return to work and brought an automatic unfair dismissal claim, citing health and safety reasons. Mr Rodgers highlighted S.100(1)(d)&(e) of the Employment Rights Act 1996 which states that an individual is unfairly dismissed if the reason (or, if more than one, the principal reason) for his dismissal was:

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

After failing in the Employment Tribunal, in the main for his inconsistent concerns of danger during the Covid-19 pandemic, Mr Rodgers appealed the decision to the Employment Appeal Tribunal. Ultimately the EAT upheld the ET decision, however, there were a number of take aways for employers from the judgment.

In particular, the EAT confirmed that a S.100(1)(d) claim could arise other than issues “generated” by the workplace itself. They provided a key example of an unskilled or untrained employee working on dangerous processes. This wording has clear implications for staffing and training levels within workplaces. In breaking down consideration for S.100(1)(d) claims,  the EAT broke down the test as follows:

1. circumstances of danger (subject to the question of whether there is an objective requirement that there were “circumstances of danger”) or whether it is sufficient that the employee reasonably believed that there were circumstances of danger;
2. the employee believed that the circumstances of danger were:
3. serious, and
4. imminent
5. the employee’s belief that the circumstances of danger were serious and imminent was reasonable;
6. the employee could not reasonably have been expected to avert the serious and imminent circumstances of danger;
7. the employee left, proposed to leave (while the danger persisted) or refused to return to his place of work, or any dangerous part of his place of work;
8. so doing was the reason, or principal reason, for the dismissal of the employee.

Whilst this case refers in particular to a specific Covid-19 scenario, the wording of the judgment is useful to employers in any case where an employee refuses to attend the workplace owing to health and safety issues.

What should you be doing now?

HR and site managers should be aware of their obligations in respect of staff safety and the potential employment law ramifications of a potentially unsafe workplace. This judgment sets out a good explanation of the S.100(1)(d) test for health and safety and should be a critical part of managers training.

The full judgment from the EAT case can be read here. 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.