Rodgers v Leeds Laser Cutting [2023] ICR 356

22 Aug

Under section 100(1)(d) of the Employment Rights Act 1996, an employee must believe they face serious and imminent danger in the workplace. However, the danger doesn't need to be confined exclusively to the workplace.

Section 100(1)(d) should be interpreted purposefully, focusing on the employee's (reasonable) belief in the danger's existence, seriousness, and immediacy.

It's implicit that section 100(1)(d) applies when an employee leaves (or intends to leave) the workplace due to perceived danger.

Facts and Application of the Law

The claimant, employed as a laser operator, chose to stay off work fearing Covid-19 risks, particularly after a colleague displayed symptoms. This decision was influenced by his child's high-risk condition and having a young baby. He was later dismissed. The claimant contended that his dismissal was due to him acting on a belief of serious and imminent workplace danger, under section 100(1)(d) of the Employment Rights Act 1996.

Upon examination, the Employment Tribunal highlighted that the claimant worked in a spacious setting where social distancing was possible. He hadn't explicitly communicated concerns about immediate danger within the workplace. The tribunal noted the claimant's actions, like driving a friend to the hospital and working at a pub during the pandemic. It determined that the claimant's reluctance to work was tied more to wider community concerns about the virus, rather than direct workplace dangers.

The EAT agreed with the tribunal's findings, highlighting that while Covid-19 conditions could be seen as potentially posing serious and imminent danger, in this specific case, the claimant's decision to stay off work wasn't directly related to workplace conditions. The claimant's actions outside of work and lack of direct workplace concerns further strengthened this perspective.

For individuals considering an appeal from the Employment Tribunal to the Employment Appeal Tribunal, this case underscores the importance of clear evidence linking one's belief in workplace dangers and any subsequent actions or decisions.