Darren Rodgers v Leeds Laser Cutting Limited

The Respondent operates a business in Leeds which uses laser equipment to cut metals and other materials. The Claimant in these proceedings, who is the Appellant before us, started employment with it as a laser cutter on 14 June 2019. On 29 March 2020, shortly after the start of the first Covid lockdown, he texted his manager to say that he would be staying away from work because he was concerned about the risk of infection. On 26 April he was dismissed.

On 14 July 2020 the Claimant commenced proceedings in the Employment Tribunal (“the ET”) claiming that he had been unfairly dismissed. He was unable to claim for “ordinary” unfair dismissal under section 98 of the Employment Rights Act 1996 because he did not have sufficient qualifying service. Rather, his claim was for “automatic” unfair dismissal under section 100 (“Health and safety cases”), and specifically subsection (1) (d) and (e). The relevant part of the section reads:

The claim was heard by Employment Judge Anderson on 29 January 2021. By a judgment and reasons sent to the parties on 2 March she dismissed the claim.

The Claimant’s appeal to the Employment Appeal Tribunal (“the EAT”) was heard by HH Judge Tayler on 12 April 2022. In the course of the hearing he abandoned his case under section 100 (1) (e), so as to rely only on subsection (1) (d). By a judgment handed down on 6 May his appeal was dismissed.

This is an appeal from the decision of the EAT, with permission granted by Bean LJ. The Claimant has been represented by Mr Rad Kohanzad and Ms Anna Dannreuther and the Respondent by Mr Jonathan Gidney. The same counsel appeared in both tribunals below, save that in the ET Ms Dannreuther appeared on her own.

At this stage I will only set out the essential background and the primary facts which give rise to the claim. Most of the facts in question derive from unchallenged findings by the ET, but at one or two points I supplement them from the contemporary documents. I will return later to the Judge’s findings on various matters of evaluation.

On 14 February 2020 the Secretary of State for Health and Social Care made a declaration, in accordance with regulation 3 of the Health Protection (Coronavirus) Regulations 2020, that “the incidence or transmission of novel Coronavirus constitutes a serious and imminent threat to public health”. The first national lockdown was announced on Monday, 23 March. Although this placed severe restrictions on the reasons for which people could leave their homes, one of the permitted reasons was to go to work if the work was of a kind that could not be done from home. Section 4 of the Guidance began:

On 24 March 2020 the Respondent put out an employee communication saying that the business was in a position to fabricate materials for the NHS and would remain open. It asked employees to work as normally as possible. The previous day it had had a Covid risk assessment of its premises carried out by an external professional. It said that “your health is our priority” and it was “putting measures in place to allow us to work as normal”. The measures which it put in place, following the recommendations in the risk assessment, included advising employees about social distancing and hand-washing and making masks available.

The Claimant came in to work for the remainder of that week. The size of the premises and the nature of his normal work made it easy to observe social distancing: I give more details below. He said in his evidence that he was nevertheless on occasion asked to do tasks where social distancing was not possible. The Judge found that he did not make any objection at the time. She rejected his evidence that masks were not available. When he left on the Friday evening he said nothing to indicate that he was intending not to return to work the following week, and the Judge found that he had not in fact formed any such intention.

On Saturday, 28 March 2020 the Claimant phoned NHS 111 and was given an “Isolation Note” for the period to 3 April 2020. The note records that this was because he had reported “symptoms of coronavirus”. It may be that this is a reference to a cough which the Claimant said that he had developed the previous week, but the ET found his evidence about this unsatisfactory.

On Sunday 29 March the Claimant texted his manager, Mr Thackery, as follows:

The Claimant did not come in to work on 30 March 2020 or thereafter. He did not contact the Respondent after 3 April, when the period covered by the isolation note came to an end. Nor did the Respondent seek to get in touch with him.

On 24 April 2020 the Claimant texted Mr Thackery as follows:

Although the Claimant’s witness statement gives an account of what prompted him to send his text and the Respondent’s witnesses seek to explain why he was dismissed – in short, because he had been absent without leave or explanation – the Employment Judge makes no findings about those matters. Judge Tayler in the EAT observed that it would have been better if she had done so, and I agree. But, as he also pointed out, such a finding was not in fact necessary to the basis on which she decided the case.

I have already set out the terms of section 100 (1) (d). It is convenient to make some general points about it at this stage. For brevity I will sometimes refer simply to “danger” rather than “circumstances of danger” and will treat the employee “leaving” the workplace as covering also the alternatives of proposing to leave or refusing to return: I will also sometimes refer to “perceived danger” as a shorthand for a serious and imminent danger which the employee believes to exist.

First, I should record that section 100 was introduced in order to give effect to EEC Council Directive 89/391 “on the introduction of measures to encourage improvements in the safety and health of workers at work”. Article 8.4 of the Directive reads:

Second, on a literal reading the opening words – “in circumstances of danger which the employee reasonably believed to be serious and imminent” – can be read as requiring a tribunal to decide, first, whether (objectively) there was a danger and then, separately, whether the employee reasonably believed that danger to be serious and imminent (which involves both subjective and objective elements). At paras. 30-32 of his judgment in the EAT Judge Tayler questioned whether that two-stage approach was correct. In para. 30 he said:

Third, although the subsection does not say so in terms, it is necessarily implicit that it only applies where the employee has left the workplace (or proposes to do so, or has not returned) because of the perceived danger rather than for some other reason.

Fourth, in the course of his oral submissions Mr Kohanzad argued that section 100 (1) (d) could apply not only where an employee reasonably believed that they were in serious and imminent danger at the workplace but also where the perceived danger arose on their journey to work. The submission was not in fact necessary to his case, but I think I should make it clear that I do not accept it. In my view it is quite clear that the perceived danger must arise at the workplace – or, to put the same thing rather more fully, the employee must believe that they are subject to the danger as a result of being at the workplace: if that were not the case, the question of them leaving the workplace would not arise. (It does not follow that the danger need be present only at the workplace: I return to that question below.)

In connection with the last point we were referred by Mr Kohanzad to two decisions of the EAT, Harvest Press Ltd v McCaffrey [1999] IRLR 778 and Von Goetz v St George’s Healthcare NHS Trust EAT/1395/97, both of which were also cited by the EAT in the present case. Harvest Press involved a claim under section 100 (1) (d) in which the danger relied on was from the abusive behaviour of a fellow-employee. Morison P rejected a submission from the employers that the word “danger” was limited to “dangers generated by the workplace itself” (i.e., apparently, the physical state of the premises or plant) and held that it could cover dangers caused by the presence (or indeed absence) of fellow-employees: see paras. 15-16 of his judgment. That has nothing to do with Mr Kohanzad’s proposition. In Von Goetz it is difficult to identify precisely what the issue was, but Mr Kohanzad referred us to an observation by Lindsay J, at para. 28 of his judgment, that:

On that basis the questions which the ET has to decide in a case under section 100 (1) (d) can be analysed as follows:

The paradigm case covered by section 100 (1) (d) is evidently where a serious and imminent danger arises at the workplace by reason of some problem with the premises or the equipment or the system of working, whether in the form of an accident or the manifestation of a more chronic problem; and its language is rather less apt to a case where the danger relied on is the risk of employees infecting each other with a disease. In the ET Mr Gidney submitted that for that reason it did not in fact apply in the present case at all. The Judge rejected that submission, and it was not pursued in the EAT or before us. I agree that there is nothing in principle about such a risk which takes it outside the scope of section 100 (1) (d): the tribunal will have to decide whether on the particular facts of each case it amounts to a serious and imminent danger.

The Employment Judge’s reasoning is carefully structured and reasoned. Mr Kohanzad took us through it in some detail, and in view of the nature of the issues I need to do the same exercise. I will use the headings from the Reasons themselves.

After dealing with various preliminary matters, the Employment Judge made her findings of fact at paras. 12-39 of the Reasons. I have already set out the essential background facts. The following further findings are potentially relevant.

At paras. 18-22 the Judge considered various specific disputes about the precautions taken by the Respondent and the Claimant’s attitude to them. In summary:

At paras. 23-28 the Judge considered the circumstances in which the Claimant left work. I have largely covered these above, but it is material to note that she found that he said nothing when he left work on the Friday to suggest that he was not coming back on the Monday. It is clear from the context that she regarded this as relevant to the question whether he had concerns about his safety at work.

Para. 29 of the Reasons reads:

At paras. 33-36 the Judge considered what views the Claimant had had and expressed at the time about the safety of the workplace. Para. 33 reads:

At paras. 37-38 the Judge gives her conclusions about why the Claimant had not returned to work on 30 March. She says:

Para. 39 addresses a particular factual inconsistency in the Claimant’s pleadings and evidence about what caused him to decide to self-isolate. I need not set out the details, but she concludes that “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”.

At paras. 40-44 the Judge sets out the applicable provisions and refers to an authority which was relevant to the claim under section 100 (1) (e). No issue arises as to this section of the Reasons.

In this section the Judge addresses what she treats as the dispositive issues under a series of headings, which (as regards section 100 (1) (d)) substantially correspond to questions (1)-(3) at para. 21 above, ending with the heading “Conclusions”. I take them in turn (marking them (1)-(3) for ease of reference).

The Judge addresses this question at paras. 46-49, as follows:

The essential finding in that passage is at the end of para. 48. The Judge finds that although the Claimant believed that there were circumstances of serious and imminent danger “all around” (see paras. 46-47) he did not consider that there were such circumstances “within the workplace” (see the earlier parts of para. 48, reinforced by para. 49). I will consider the precise nature of that distinction later.

This question only arises if the Judge was wrong to find that the Claimant did not believe that there was a serious and imminent danger at the workplace. Nevertheless, she addresses it in the alternative at paras. 50-53 of the Reasons, as follows:

The “reasons set out above” referred to in para. 50 are evidently those which she goes on to summarise in paras. 52-53, of which more detail had been given in the “Facts” section (and recapitulated in para. 48).

This question arises in the further alternative. The Judge deals with it as follows:

Strictly speaking, the Judge’s dispositive conclusions are to be found in her answers to the three questions set out above. What appears under this heading is her consideration of some particular arguments advanced by counsel (paras. 61-63), followed by a summary recapitulation of the conclusions already reached (paras. 64-65).

At para. 61 the Judge rejects Mr Gidney’s submission that section 100 (1) (d) and (e) could not apply to the present case because they were not designed for a danger of the kind posed by the Covid-19 pandemic and says that “every case will need to be considered on its facts and merits”. As I have said, that conclusion is not now challenged, and I agree with it.

At para. 62 she rejects a submission on the part of Ms Dannreuther that the Secretary of State’s declaration of 14 February 2020 that “the incidence or transmission of [Covid-19] constitutes a serious and imminent threat to public health” was conclusive of “this part of the statutory test” – which I take to be a reference to what I have analysed at para. 21 above as questions (1) and (2). Mr Kohanzad did not pursue that submission, and I agree that the Judge was right to reject it.

Para. 63 reads as follows:

The Judge’s recapitulation of her reasoning as regards section 100 (1) (d) reads as follows:

She concludes, at para. 67, with the observation that:

The outcome of this appeal depends primarily on establishing the true basis of the Judge’s reasoning, particularly on question (1). My analysis is as follows.

It is clear that at the centre of the Judge’s reasoning is a distinction which she makes at several points in the Reasons, albeit using slightly different language, between

It is necessary to establish what the Judge intended by that distinction. Mr Kohanzad submitted that on a fair reading of her Reasons the Judge believed that as a matter of law section 100 (1) (d) was only concerned with dangers that were specific to the workplace in the sense that they only arose there. He submitted that that was the clear sense of her references to dangers “directly attributable to the workplace” and to “working conditions”.

I do not accept that submission. Reading the Reasons as a whole, it seems to me adequately clear that the distinction intended by the Judge depended not on a proposition of law but on a factual finding about what the Claimant thought was the risk of infection at the workplace, as opposed to what it might be elsewhere in the community. That is the clear focus of her detailed findings at paras. 18-39, as summarised above, and in particular of her consideration of the Claimant’s evidence about “his level of concern over Covid-19” (see para. 39), about which she was sceptical for the reasons that she gives, including the absence of any contemporary complaint. Those findings suggest a factual finding that, in short, the Claimant did not feel seriously at risk in the workplace, and that that is all that is meant by her references to a danger “directly attributable to the workplace” or to “working conditions”. It is fair to say that that begs the question why he decided on 28 March to self-isolate, especially as the Judge acknowledges the genuineness of his concern about the risk of infection, in particular to his children: there may be answers to that question, but the Judge does not give them. However, that point does not go to the nature of the exercise that she was carrying out. At most it might be said to be a factor to which she did not give sufficient weight in making her finding of fact about what the Claimant thought – though in fact, as we shall see, there is no challenge on that basis.

My conclusion about the nature of the distinction relied on by the Judge is reinforced by her statement at para. 64 that her decision was specific to the facts of this particular case. If she had decided it on the basis of the proposition of law which Mr Kohanzad attributes to her the outcome would be the same in any case where an employee was dismissed for leaving the workplace because they believed that the risk of infection with Covid-19 was a serious and imminent danger; that is an outcome which she disapproves at para. 63. I also believe that if the Judge was relying on such a proposition of law she would have explained explicitly what it was and on what she based it.

I need not say anything at this stage about the Judge’s alternative reasoning based on the reasonableness of the Claimant’s belief in any perceived danger and on the possibility of averting it. I return to them later.

Since the ultimate question for us is whether the ET, and not the EAT, erred in law it is unnecessary to summarise the reasoning of the EAT in any detail, and without intending any disrespect to Judge Tayler I will not do so. The essence of his reasoning is to be found at para. 46 of his judgment, where he deals together with questions (1) and (2). He says:

The pleaded grounds of appeal are rather discursive and contain material that belongs in the skeleton argument rather than the grounds. I set out only the parts that identify the errors of law alleged. Two numbered grounds are pleaded, together with what appears to be intended as a third ground headed “Averting the danger”.

Ground 1 is pleaded at paras. 10-15. The point itself is pleaded at paras. 10 and 11, which read:

As worded, paras. 10 and 11 of ground 1 are directed to question (2) – that is, to whether the Claimant’s belief that there was a serious and imminent danger at the workplace was reasonable. In fact, as we have seen, the Judge relied on the “not specific to his workplace” point in connection not with question (2) but with question (1) – that is, whether the Claimant believed that there was such a danger. Sensibly, in his and Ms Dannreuther’s skeleton argument (to some extent) and (more clearly) in his oral submissions Mr Kohanzad re-focused his challenge on to question (1). Para. 15 of ground 1, however, is truly directed to question (2).

Ground 2 is pleaded at paras. 16-17 and is that the ET in para. 63 of the Reasons impermissibly gave weight to “floodgates” considerations. Mr Kohanzad told us that he was not pursuing that as a separate ground.

The third ground contends that the ET’s decision on question (3) is

It should be noted that the challenge in paras. 10 and 11 of ground 1 is addressed squarely and only to the proposition of law which they attribute to the Judge. If her reasoning did not in fact rely on that proposition but was based purely on a finding of fact about what the Claimant believed, there is no challenge to that finding based on perversity or inadequate reasoning – or, which might be an important point in some cases, on how the phrase “serious and imminent” applies in the context of the risk of infection with Covid-19.

That being so, although in the introductory part of his oral submissions Mr Kohanzad made some points about the factual background – emphasising, for example, the depth of public concern in the early stages of the pandemic, and the particular vulnerability of a child suffering from sickle-cell anaemia – those were immaterial to the grounds on which he relied. We are concerned on this appeal with the particular issue said to be raised by the Judge’s reasoning.

My conclusion on the outcome of the appeal is largely dictated by the conclusion which I have already expressed about the Judge’s reasoning. For the reasons given I do not believe that she proceeded on the basis of the proposition of law attributed to her by Mr Kohanzad and which he seeks to challenge. It follows that the appeal must fail.

It may, however, be useful if I say that if, contrary to my view, the Judge had proceeded on the basis alleged by Mr Kohanzad, I agree with him that she would have erred in law. I can see nothing in the language of section 100 (1) (d) that requires that the danger should be exclusive to the workplace. All that matters is that the employee reasonably believes that there is a serious and imminent danger in the workplace. If that is the case, it is the policy of the statute that they should be protected from dismissal if they absent themselves in order to avoid that danger. It is immaterial that the same danger may be present outside the workplace – for example, on the bus or in the supermarket.

Since the Claimant has failed to impugn the Judge’s finding that he did not believe that there was a serious and imminent danger in the workplace the question of whether any such belief would have been reasonable – question (2) – does not arise. However, even if I were wrong in my conclusion about the Judge’s reasoning on question (1), I believe that her answer to question (2) was unimpeachable and that the appeal accordingly would fail in any event. I should briefly explain why.

The Judge began her consideration of question (2) at para. 50 of the Reasons by saying that “any belief that there were circumstances of serious and imminent danger” was not reasonable “largely for the reasons set out above”. Mr Kohanzad submitted that the latter phrase showed that her conclusion was necessarily infected by the same error as her conclusion on question (1). I do not accept that submission (which I take to be same point as is pleaded at para. 15 under ground 1). The Judge was, necessarily, proceeding for the purpose of question (2) on the basis that, contrary to her conclusion on question (1), the Claimant did believe that there was a serious and imminent danger at the workplace. For that purpose her (ex hypothesi) flawed legal distinction between a danger at large and a danger specific to the workplace was irrelevant. She was simply looking at the Claimant’s belief and considering whether it was reasonable. The “reasons set out above” are, as I have already said, those given in the “Facts” section and briefly recapitulated in paras. 52-53 – that is, in essence, that “it was not hard to socially distance and measures were in place to reduce the risk of Covid-19 transmission”. As we have seen, there is no challenge to that conclusion in its own terms.

As for the Claimant’s challenge to the Judge’s conclusion on question (3) – averting the danger – I have already noted that that appears to be parasitic on his ground 1. In any event, the challenge goes nowhere if he has failed on his other grounds.

For those reasons I would dismiss this appeal.

We were conscious that this is the first appeal to reach this Court on the application of section 100 (1) of the 1996 Act to dismissals related to the Covid-19 pandemic. We asked to be referred to any ET decisions of which the parties were aware involving such a claim so that we could be aware of the general litigation background, and Ms Dannreuther helpfully supplied us with copies of several judgments. A brief perusal of these showed that the circumstances in which claims under section 100 have arisen – as much under subsection (1) (e) as under subsection (1) (d) – are very various. I have dealt at paras. 17-22 above with a few particular issues of wider application which were raised by the submissions in the present case, but it would be unsafe to attempt any more general guidance.

I agree.

I also agree.