D RODGERS v LEEDS LASER CUTTING LTD

This is an appeal against the judgment of Employment Judge Anderson dismissing a claim of

I take the facts from the judgment of the employment tribunal. The employment tribunal heard

The claimant commenced work for the respondent as a laser operator on 14 June 2019.

The employment tribunal described the respondent's workplace:

The employment tribunal accepted that the workplace was a large warehouse-type space about

On 16 March 2020, a colleague of the claimant, whom the employment tribunal described as

In a number of respects the employment tribunal found that the claimant’s evidence lacked

In the claimant’s original claim, he said that he had been working with TA on the day TA was sent home (which he had pleaded as being 27 March 2020), that he (the claimant) had later developed a persistent cough and feared he might have been exposed to infection and decided to self-isolate. In the amended claim, the claimant states that he had worked with TA on 16 March 2020 and that his (the claimant’s) cough had developed on 27 March 2020.

The first national ‘lockdown’ because of the Coronavirus pandemic was announced on 23

Following the announcement of the first national ‘lockdown’ on 23 March 2020, the respondent published, on 24 March 2020, an ‘employee communication’. This document confirmed that the business would remain open, asked staff to work as normally as possible and states “we are putting measures in place to allow us to work as normal.” I accepted the clear and consistent evidence of the respondent’s witnesses that there were already some measures in place to protect against Covid-19 and that the need to socially distance was by that time common knowledge.

A risk assessment was undertaken in mid March by an external professional. Most of the

A risk assessment was carried out by an external professional in mid-March 2020. That assessment identified the level of risk of various scenarios, with recommendations to reduce risk. Many of these recommendations refer to social distancing and wiping down surfaces, as well as staggering start/finish/lunch/break times. Mr Rice and Mr Thackery were clear that most of these recommendations were already in operation prior to the risk assessment being carried out. Mr Thackery told the Tribunal there was no real need to stagger start times, as individuals already arrived at staggered times. I accepted this evidence, having considered the clocking in sheet and hearing the evidence. Mr Rice said that staff had been told not to congregate at lunch and break times, but this advice had to be reiterated, as it would be ignored. I accepted this evidence and noted Mr Rice’s exasperation at this fact. However, I noted that the evidence about 27 March 2020 was consistent that all the staff on shift were clocking out at the same time. I therefore find that there was partial adherence to these specific recommendations.

The employment tribunal found that measures to protect against Covid-19 had been discussed

I find there were conversations with staff at the respondent’s premises in relation to safety measures to protect against Covid-19. These included conversations about social distancing and the need for handwashing. Mr Thackery was clear in his

The claimant was generally able to maintain “social distance” at work:

The employment tribunal rejected the claimant's evidence that he was forced to go on

In respect of the allegation that the claimant was forced to go on deliveries, Mr Thackery said that he did not recall any concerns being raised about this. Mr Thackery also said that going out in the van was not a direct requirement of the claimant’s job. Mr Thackery said that it was a help for company, the claimant was not forced and that he asked the claimant if he was alright doing that task. I note that the claimant was employed as a laser cutter and I accept the evidence that it was not a direct part of his role. I further accept that he was not forced or required to undertake such tasks; this was not asserted by the claimant, who said that he was ‘asked’. I do not find that concerns around this issue were raised directly with Mr Thackery. I considered Mr Thackery’s slight surprise around this issue to be genuine.

Masks were available for employees. The employment tribunal held that the claimant, whose

I find, on the balance of probabilities, that the claimant did not ask for a mask, and was not refused one. The claimant said in evidence that there was a mask dispenser at the door of the premises, but that it was empty. He said he was sent out on deliveries without a mask. Mr Thackery said he has no recollection of being spoken to about a lack of masks. Mr Thackery said he had no recollection of the dispenser being empty or anyone telling him that it was empty. He said he still has boxes of masks in his desk. Mr Rice also made reference to Mr Thackery always having masks. When I asked the claimant if he had asked specifically for a mask, he said he had made the respondent aware, but could not remember what response he had received. I preferred the clear and consistent evidence of the respondent over the vague evidence of the claimant in this regard.

The claimant developed a cough on 25 March 2020 that he attributed to dust at work. The

The claimant displayed a slight cough from 25 March 2020, but attributed this to the temperature and dust within the workplace and was not concerned it was a symptom of Covid-19.

The claimant left work at normal time on Friday 27 March 2020.

I find the claimant did not say, on 27 March 2020 when he left work for the day, that he was not coming back.

On 29 March 2020 the claimant sent an email to Mr Thackery [26]:

“unfortunately I have no alternative but to stay off work until the lockdown has eased. i have a child of high risk as he has siclecell (sic) & would be extremely poorly if he got the virus & also a 7 month old baby that we don’t know if he has any underlying health problems yet”

Mr Thackery replied [27]:

“ok mate, look after yourselves”

The claimant was self isolating from 28 March to 3 April 2020, but drove Mr Knapton, who

The claimant obtained a self-isolation note from NHS 111 for the period 28
March 2020 to 3 April 2020.

The claimant transported Mr Knapton to hospital, by car, on 30 March 2020. This was during the period that the claimant had been told by the NHS to self-isolate. The claimant told the Tribunal both he and Mr Knapton wore masks, that Mr Knapton sat in the back of the car and that he did not accompany Mr Knapton into the hospital itself. I accept that account.

There was no further contact between the claimant and the respondent until the claimant sent

The claimant made no further effort to contact the respondent after 29 March
2020, whether to raise the issue of furlough or sick pay, or for any other reason.

The respondent made no effort to contact the claimant to clarify his position or to discuss any alternative options, including furlough or sick pay. The respondent made a conscious decision not to make contact with the claimant, considering the onus to be on him to make such contact.

The next contact between the parties, after 29 March 2020, was on 24 April 2020 when the claimant sent Mr Thackery a text saying:

Judgment approved by the court for handing down Rodgers v Leeds Laser Cutting Limited

“just been told iv been sacked for self isolating, could you please send it to me in writing or by email…with an explanation of why my employment ended with the date it ended. i also need my p45 sending out as soon as possible”.

The employment tribunal was not convinced by the claimant’s evidence about why he decided

I found the claimant’s case confusing and his views apparently contradictory at times. He gave evidence that if all the measures described by the respondent were in place, that would make the business as safe as possible from infection. He gave evidence that this would possibly make the workplace safer than the community at large, but not safer than his own home. He gave evidence that he was not sure that any measures would have made him feel safe enough to work at the respondent’s business. He gave evidence that he drove his friend to hospital (during his period of self-isolation). He gave evidence that he had not left home for nine months. He told the Tribunal he had spent a period of time working in a pub during the pandemic, where safety measures were in place.

The claimant’s evidence about any concerns he had and how these were raised was also confusing. He said that he didn’t make any complaints. He said that he raised issues but was told ‘there’s the door’. He said he and colleagues talked about their concerns. He said he did mention this to Mr Thackery, but could not give any firm examples. When asked if he had complained to Mr Thackery that the risk assessment measures, wiping down etc was not happening, he said “probably not in them words”. He was then asked if he made that complaint and he said “not that I can remember.” When asked whether he told managers, or just discussed with colleagues, he said that he had chats with colleagues, but Mr Thackery ‘knew about it’. When asked if he said to Mr Thackery measures are not in place and so the workspace isn’t safe, the claimant replied “I can’t say that I remember saying that. I’d be lying.”

Mr Thackery said that there were some general conversations about Covid-19 in general society only and he had no recollection of ever threatening the claimant with his job as alleged.

I find that the claimant did not raise concerns with the respondent that could reasonably be described as meaningful concerns or complaints, which would inform the respondent that the claimant thought there were circumstances of imminent danger within the workplace.

I conclude that the claimant’s decision to stay off work entirely was not directly linked to his working conditions; rather, his concerns about the virus were general ones, which were not directly attributable to the workplace. In his oral evidence, it was clear he was concerned as to the virus in general, he referred to his own home as being the safest place and he told the Tribunal that he chose to self-isolate ‘until the virus calms down’.

I find that, when communicating to his employer his intention to stay away from work, the claimant made no reference to the working conditions as playing any part in his decision. The text on 29 March 2020 said he was going to stay off work until the lockdown eased; nothing to do with the conditions of employment.

The claimant amended his claim on two separate occasions. In his oral evidence, his account was still different. His amended claim stated that “on 27 March 2020, he developed a persistent cough and fearing he might have been exposed to infection and following Government guidance”, he decided to self-isolate. This would mean the claimant feared having been exposed to TA some 11 days earlier. In his oral evidence, the claimant said that he was not worried about having Covid-19 due to his cough, and put it down to the temperature and dust within the workspace. I consider the inconsistencies more than a simple mistake over dates, given the detail provided about their significance and I consider it further calls into question the claimant’s reliability in his version of events, his level of concern over Covid-19 and his concerns specifically in relation to the safety or otherwise of the workplace.

The respondent sent a P45 on 24 April 2020 that was received by the claimant on 26 April

The respondent accepted that the claimant's receipt of the P45 constituted a dismissal. The

The claimant asserted that his dismissal was automatically unfair being contrary to section

On a fair reading of the employment tribunal judgment it seems clear that the employment

Lawyers tend to break down statutory provisions into their component parts, sometimes

With that caveat in mind, there was broad agreement between the parties as to the components

On a natural reading of section 100(1)(d) ERA it appears that there is a gateway requirement

That analysis would be compatible with paragraph 4 of Article 8 of Directive 89/391 EEC

Workers who, in the event of serious, imminent and unavoidable danger, leavetheir workstation and/or a dangerous area may not be placed at any disadvantagebecause of their action and must be protected against any harmful and unjustifiedconsequences in accordance with national laws and/or practices.

Paragraph 4 of Article 8 of the Framework Directive refers to serious, imminent and

In Von Goetzv St George's Healthcare NHS Trust EAT/1395/97 Lindsay J (President)

The issue is potentially relevant because the employment tribunal determined the case on the

I can see some force in the argument that the provision should apply if the employee

For section 100(1)(d) ERA to apply it is not necessary that the circumstances of danger be generated by the workplace itself:Harvest Press Ltd v Mr T J McCaffrey [1999] IRLR 778

As to the submission that the circumstances of danger referred to in section100(1)(d) means the circumstances of danger generated by the workplace itself, itseems to us that that is too narrow a view of words which are quite general. It seemsto us clear that premises or the place of work may become dangerous as a result ofthe presence or absence of an employee. For example, premises might becomeunsafe as a result of the presence of an unskilled and untrained employee workingon dangerous processes in the workplace where the danger of a mistake is not justto that employee, but to the colleagues who are working with him. It seems to usthat the circumstances of danger contemplated by section 100(1)(d) would be apt tocover such a situation and it seems to us that had a fellow employee walked outbecause of the presence of an unskilled and untrained operative in thosecircumstances, he would be entitled to the protection of the legislation.

Another example might be the absence of an inspector or foreman who hadspecific safety responsibilities and who was required to be there as a result of thedangerous processes which were being carried on. Again, we can contemplatecircumstances in which a fellow employee would be entitled to say that hisworkplace was dangerous as a result of the absence of the specific person in chargeof the safety responsibilities at that place of work. Another example might be wherethere was a foolhardy employee who, not through lack of training, but throughdetermination to indulge in horseplay, persisted in adopting dangerous practices inthe place of work so as to render the place at work dangerous. It seems to us thatthat might again be a situation in which fellow employees would be entitled to sayto their employer; “so long as this person is at the workplace, my workplace isdangerous and I will not be willing to stay there during this time”. Again, it seemsto us that that falls within the words “in the circumstances of danger” and there isnothing in the statute to indicate that these examples would be outwith the

There is no requirement that any harm that might be caused by the circumstances of danger

The parties agree that it is necessary that the employee did, as a matter of fact, believe that the

The parties agreed that the belief must be reasonable

The parties accept that this was a necessary component of the analysis in this case because the

Although the judgment could have been a little clearer on this issue, I consider that on a fair reading of the judgment ofthe employment tribunal accepted that the claimant left or, more likely,

The employment tribunal did not make an express finding about the reason for the claimant's

From the above analysis it is apparent that the components of section 100(1)(d) ERA that are

In his skeleton Mr Kohanzad put his ground of appeal as follows:

The reasoning of the employment tribunal did not break down the components of section

I have to consider this both objectively and subjectively, i.e. did the claimant believe the circumstances were of serious and imminent danger and was that belief objectively reasonable?

I accept that the claimant has, and continues to have, significant concerns about the Covid-19 pandemic. This is entirely understandable. His comments that he has not left the house in nine months and that nowhere is safer than his home demonstrate the level of his concern. It is difficult however, to reconcile those

I accept also, his concerns for his family and note that he had a young baby and a child with sickle-cell anaemia living with him in March 2020, when there was huge uncertainty about how different, younger groups in society might be affected by the virus.

The government guidance at the time centred around social distancing and handwashing. The workplace is large, with a handful of people working within it at the time. On the claimant’s own evidence, it was generally ‘not hard’ to socially distance. In addition, he accepted there had been reminders around handwashing and he gave some specific examples of this. Having considered all the circumstances including, the claimant’s knowledge and the facilities and advice available to him at the time, and bearing in mind his decision to drive his friend to the hospital in the circumstances described, I do not find that the claimant believed there were circumstances of serious and imminent danger, within the workplace, but that he considered there were circumstances of serious and imminent danger all around.

I remind myself that the claimant’s text to Mr Thackery on 20 March 2020 made reference to staying off work until the lockdown eased; there was no reference to any issue specifically within the workplace. The claimant did not indicate that he would return if improvements were made. He intended, seemingly regardless, to remain absent until the national lockdown was over.

For the avoidance of doubt, I do not consider that any belief that there were circumstances of serious and imminent danger were objectively reasonable, largely for the reasons set out above.

I have to consider the circumstances as they were at the time of these events and in light of what was known to the parties and particularly the claimant at the time. We have learnt much more about the virus since March 2020, but my focus is on that point in time.

It was clear, even in late March 2020, that Covid-19 was a real risk to everyone, that it was a deadly virus and that it was affecting the older and vulnerable more. The guidance at that time was that Covid-19 was spread by close contact and the advice was to maintain two metres distance from others and to wash hands regularly.

I consider the large size of the workspace and the small number of employees to be a relevant factor. It was not hard to socially distance and measures were in place to reduce the risk of Covid-19 transmission.

The employment tribunal returned to these issues in the section headed “Conclusions”. The

Mr Gidney submitted that the provisions within s100(1)(d) and (e) were not designed for the Covid pandemic and the claim was an attempt by the claimant to ‘shoehorn’ his situation into these provisions, to suit him, in the context of the pandemic. I accept that when drafted, the Act was not specifically designed for the Covid pandemic – how could it have been? However, I reject the suggestion that s100(1)(d) and (e) cannot apply to situations arising from the pandemic, as a matter of principle. It seems to me that every case will need to be considered on its facts and merits.

The claimant refers to the Secretary of State’s declaration of 10 February 2020 under regulation 3(1) of the Health Protection (Coronavirus) Regulations 2020 that Covid-19 poses a serious and imminent threat to public health (emphasis added). However, I consider that the fact that the virus has been described in those terms does not, of itself, satisfy this part of the statutory test. If it did, it seems to me any employee or worker could simply ‘down tools’ on the basis that the virus is circulating in society.

The employment judge considered the submission that the claimant had a reasonable belief in

In her closing submissions, Miss Dannreuther submitted that even if there had there been measures in place at the time, there was still a reasonable belief held by the claimant of a serious and imminent danger, which he could not avert. I am not persuaded that this is a correct interpretation of the provisions. To accept this submission would essentially be to accept that even with safety precautions in place, the very existence of the virus creates circumstances of serious and imminent danger, which cannot be averted. This could lead to any employee relying on s100(d) or (e) to refuse to work in any circumstances simply by virtue of the pandemic.

In my judgment, whilst conditions pertaining to Covid-19 could potentially amount to circumstances of serious and imminent danger in principle, I do not consider that they did so in this case. I do not consider that the claimant reasonably believed that the circumstances were of serious and imminent danger, for the reasons set out above.

When considering s100(1)(d), I conclude the claimant’s decision to stay off work was not directly linked to his working conditions I find that this is not a case where the claimant refused to return to his place of work, or any dangerous part of his place of work due to the conditions in that environment; he refused to return to his place of work until the national lockdown was over. I cannot conclude that the decision to absent himself, regardless of what the situation might be at the workplace, until a national change was made, can lie at the door of the respondent. For that reason, and for those set out above, in my judgment, the criteria in this paragraph are not made out.

The claimant contends that the employment tribunal erred in law by concluding that “because

I accept that an employee could reasonably believe that there is a serious and imminent

The employment tribunal made a number of significant findings of fact that were contrary to

The reasoning of the employment tribunal overlapped to an extent when dealing with the

The employment tribunal also held that:

Mr Kohanzad contended that as the employment tribunal had erroneously concluded that

Despite the topicality and the potential importance of employment issues arising from the