Was a tribunal entitled to hold that an employee who failed to attend work during the covid pandemic was not automatically unfairly dismissed for doing so in the face of serious and imminent danger?

Yes, held the Court of Appeal in the recent case of Rogers v Leeds Laser Cutting.

This is actually the first case relating to Covid 19 cases and s100(1)(d) Employment Rights Act 1996 to reach the Court of Appeal. The short-serving Claimant had been absent from work after his initial isolation note had expired, and was dismissed. The tribunal held his concerns regarding covid were general, rather than workplace-specific.

The Court of Appeal set out 5 questions that a tribunal has to decide in cases under s100(1)(d): 

  1. Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
  2. Was that belief reasonable? If so:
  3. Could they reasonably have averted that danger? If not:
  4. Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:
  5. Was that the reason (or principal reason) for the dismissal?

Questions (1) and (2), could be broken down into two questions, addressing separately whether there was a reasonable belief in the existence of the danger and in its seriousness and imminence; but in most cases that is likely to be unnecessary.

The court noted that “it is the policy of the statute that (employees) should be protected from dismissal if they absent themselves (from the workplace) in order to avoid… …danger.”

The court also noted obiter that it is sufficient that the employee has a reasonable belief in the existence of danger as well as in its seriousness and imminence, rather than requiring actual danger.