Covid-19: The Court’s Approach To Risk
Businesses are reminded of the need to manage workplace risk and dismissals of staff reasonably and effectively if they are to succeed in defending worker claims emanating from covid-19.
In a win for one such business1, the Employment Tribunal has ruled on one of the first cases on statutory protections under the Employment Rights Act 1996 (ERA) in the context of covid-19 concerns.
In context
Here, the claimant started his role for the respondent company in June 2019, working in a large warehouse-style space where around five people at a time would be working. He had no written employment contract. According to the company’s risk assessment, all government recommendations were implemented.
However, in March 2020, days after the first national lockdown was implemented, the claimant texted his employer saying he had “no alternative” but to remain off work until lockdown has eased because his son was in a high-risk category. A few days previously, a colleague had displayed symptoms of covid-19 and was required to self-isolate.
Shortly after, the claimant was dismissed and he brought a claim for automatic unfair dismissal, for which no qualifying period was required (as he had less than two years’ continuous service he was precluded from bringing an ordinary unfair dismissal claim).
He relied on s100 ERA and that, effectively, the company’s reason for dismissal was his refusal to return to work because of alleged dangerous circumstances at work in which he could not reasonably have been expected to avert.
However, as the tribunal noted, the claimant intended to remain off work until the lockdown measures eased – his decision to stay off work was not directly linked to the workplace conditions. In fact, he had not even referred to those conditions when he gave reasons for deciding not to return to work during lockdown. Rather, his concerns about the virus were general ones which were not directly attributable to the workplace.
And what of the working conditions in reality? The workplace was a large warehouse (half the size of a football pitch) with few people working there at any one time – it was not hard to socially distance and measures were in place to reduce the risk of transmission.
The ET concluded that the claimant did not reasonably believed that the circumstances were of serious and imminent danger for the purposes of s100 ERA. Furthermore, his decision to absent himself entirely were not appropriate.
What does this?
This is unlikely to be the first such case to reach the employment tribunal, but cases will be fact-specific. For instance, the tribunal judge acknowledged in his ruling that conditions pertaining to covid-19 could amount to circumstances of serious and imminent danger in principle – but not in this case.
Businesses need to ensure they remain alert to potentially dangerous situations arising in the workplace and take appropriate measures to minimise the chance of claims.
It is also worth noting that the tribunal judge appeared to have a somewhat low view of the way the respondent company conducted itself around the dismissal, but he did not cite his concerns because this was not an ‘ordinary’ employment claim.
1Rodgers v Leeds Laser Cutting Ltd [2021] 1803829/2020
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