Sections 100(1)(d) and (e) of the Employment Rights Act 1996 provide employees with protection against dismissal if they leave the workplace, refuse to return to it, or take other steps to protect themselves, if they reasonably believe there is serious and imminent danger.
The first Covid-related claim of this nature reached the Court of Appeal in Rodgers v Leeds Laser Cutting. The employee worked in a large warehouse with few other employees. There were Covid-related safety measures in place even before the first lockdown, including extra cleaning and social distancing. The employee worked the first week of lockdown but then messaged his manager to say he wouldn’t be coming to work until lockdown eased. He was worried about passing on the virus to his vulnerable child. He was dismissed a month later and brought an unfair dismissal claim.
The Employment Tribunal said that a reasonable belief in serious and imminent danger should be judged on what was known at the time the actions were taken. The Tribunal said that the employee didn’t believe there was serious and imminent danger in the workplace – he believed there was serious and imminent danger everywhere. His message said he would return when the pandemic eased, not when the workplace was made safe. Also, he was inconsistent about his fear, taking other Covid-related risks outside work. The workplace was large enough to facilitate social distancing. His belief in danger was not reasonable. The Employment Appeal Tribunal (“EAT”) agreed. The employee could have taken reasonable steps to avert the danger by adhering to safety guidelines in place, including distancing, handwashing and mask-wearing, both at work and in general. The employee appealed.
The Court of Appeal agreed. The employee’s belief that there was serious and imminent danger in the workplace was not reasonable on the facts – the size of the workplace, the measures in place and ability to socially distance. The Court stopped short of giving more general guidelines because cases are so fact specific. However, they said there were five questions to ask in this kind of case:
- Did the employee believe there was serious and imminent danger at work?
- Was that belief reasonable?
- Could the employee have reasonably averted that danger?
- Did they leave (or refuse to return to) work because of that danger?
- Was that the reason for the dismissal?
The employee in this case did not help himself, claiming he was too scared of the virus to attend his large workplace whilst being willing to take other risks outside work. Although the employee did not win, this litigation shows that the ‘danger’ does not have to be workplace-specific and can include danger that exists more widely like a pandemic. An employee must reasonably believe that the danger affects their ability to go to work. Employers who follow Government and industry specific guidance will significantly reduce any ‘danger’ posed to staff by a virus and with it the risk of litigation.
iscrimination arising from disability happens when an employer treats an employee unfavourably because of ‘something’ arising from their disability and the employer cannot justify the treatment as a proportionate way of achieving a legitimate business aim. In DWP v Boyers, the EAT examined a case where the employer had legitimate business aims but the actions they took to achieve them were found to be disproportionate.
The employee was an administrator who was disabled due to recurrent migraines. She said colleagues were bullying her which exacerbated her migraines. She asked for them to be moved, or to move herself, but requests were refused. She then broke down in tears at work after which she was moved to a different floor and a stress reduction plan put in place. Some months later, she went off sick with stress. She lodged a grievance which was rejected. The employer allowed her to do six-week trial at another office, but it was fraught with IT problems and a lack of training and feedback. The employer decided the trial hadn’t worked and ordered the employee back to her usual place of work. She remained off sick and was eventually dismissed for capability. She brought tribunal claims including one for discrimination arising from disability.
The employment tribunal said her dismissal was not proportionate. The employer appealed. The EAT said that the tribunal had focussed on the decision-making process, relevant to an unfair dismissal claim, rather than looking at the employer’s legitimate aims (saving public funds, protecting other employees) and balancing the needs of the business against the discriminatory effect of the treatment (the dismissal). The case was sent back to the tribunal. The employment tribunal again found that the dismissal was discriminatory, so the employer appealed to the EAT once again. The EAT dismissed the appeal. The tribunal had applied the right balancing test this time. The tribunal had found that the employer had not properly evaluated the trial at a different office which could have avoided the employee’s dismissal. They decided that the dismissal was not proportionate based on the appropriate balancing exercise between the legitimate aims and the discriminatory impact on the employee. The EAT confirmed that a tribunal may consider the dismissal procedure in that balancing exercise provided the tribunal’s focus is on the outcome of the decision making - the dismissal, rather than the process itself - and decide whether that outcome is objectively justified. A potential move to another office was relevant to proportionality even if it fell outside of the employee’s contractual terms. Without properly considering the trial, and the things that went wrong there, the employer could not show that the dismissal was proportionate.
This case shows that the dismissal procedure can be relevant when considering whether an employer can justify discrimination arising from disability. If an employer dismisses an employee in such circumstances, the decision makers will need to understand (and evidence) how the decision to dismiss is a proportionate way of achieving their stated, legitimate aims. It may count against an employer if they fail to properly analyse why a trial in another role did not work. This case is also a reminder that employers must consider whether there are other, less discriminatory ways of achieving their aims - here, that was the opportunity to work from a different location.
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