EAT sides with employer on what constituted a “serious and imminent danger” during the pandemic

The claimant informed his employer on 29 March 2020 that he had to stay off work until the pandemic eased because his child had sickle cell disease and his baby might also have underlying health conditions.  His line manager accepted this by text message.  The claimant made no further effort to communicate with his employer and was dismissed on 24 April 2020.  He brought a claim for, among other things, automatic unfair dismissal on health and safety grounds under section 100(1)(d) Employment Rights Act 1996 (“ERA”).

Scope of s.100(1)(d) ERA

Section 100(1)(d) ERA protects employees against dismissal where they reasonably believe there is a serious and imminent danger.  It provides that an employee is automatically unfairly dismissed if the reason for dismissal is that “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”.  Section 100(1)(e) ERA is similar but relates to the employee taking steps to protect themselves or others from danger (and whilst s.100(1)(e) was considered in this case the EAT found that s.100(1)(d) was the appropriate claim).

Prior to the pandemic, claims brought under ss.100(1)(d) and (e) were rare but are now on the rise.  Importantly, there is no qualifying period required to bring these claims.

The Employment Tribunal (“ET”) decided that this case did not fall within s.100(1)(d).  On appeal, the claimant argued that the ET had erred in law by concluding that, because his belief was one of a serious and imminent danger at large, his belief that his workplace presented a serious and imminent danger was not objectively reasonable.

The EAT dismissed the appeal finding that there was no automatic unfair dismissal.  In doing so, it found that the ET had accepted that the pandemic had created at least some circumstances of danger at work and so it went on to look at whether the claimant believed the danger to be “serious and imminent”.

“Serious and imminent danger”

The EAT held that:

1. The ET had correctly considered that the workplace constituted “no greater a risk than there was at large”, and that the claimant did not reasonably believe that there were circumstances of danger that were serious and imminent, at work or at large, that prevented him returning to work.  The following factors weighed against the claimant here:
   1. The workplace was large with few employees;
   2. The claimant stayed at work from the date lockdown was announced until the day he left, which was at his normal time;
   3. The claimant could generally maintain social distance at work;
   4. The claimant had not asked for a mask when masks were available;
   5. The claimant drove a friend to hospital while he was meant to be self-isolating; and
   6. The claimant worked in a pub during lockdown.
2. An employee could reasonably believe that there is a serious and imminent circumstance of danger that exists outside of work that could prevent him/her from returning to it, and such circumstances could potentially fall within S.100(1)(d);
3. However, the fact that the claimant had genuine concerns about the pandemic, and particularly about the safety of his children, did not mean that he necessarily had a genuine belief that there were serious and imminent circumstances of danger, either at work or elsewhere, that prevented him from returning to work; and
4. The claimant could have taken steps to avert the danger such as wearing a mask, socially distancing, sanitising and washing his hands.

Conclusions

The EAT concluded its judgment by stating: “Despite the topicality and the potential importance of employment issues arising from the Coronavirus pandemic [and] the sympathy that one necessarily has for the concerns that the claimant had about the safety of his children…I conclude that no error of law has been established”. Employers can take some comfort from this, especially in light of the fact that we are likely to now see more of these types of claims arising as we move forward from the pandemic and as more employees return to work.

However, the judge warned that the pandemic could still, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent – leaving the door open for future successful claims.  Employers should take advice at the earliest possible stage in order to protect their position and minimise the risks.