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The Court of Appeal has held in Rodgers v Leeds Laser Cutting Ltd that the dismissal of an employee who told his manager that he would not return to work until after lockdown, because he was afraid that he would infect his children (one of whom has sickle cell disease, and both of whom are vulnerable) with Covid-19, was not automatically unfair under section 100(d) of the Employment Rights Act 1996.

This section applies where an employee leaves or refuses to return to the workplace in circumstances of danger. The Court held that it had been permissible for the employment judge to conclude on the facts that there were no circumstances of danger that the employee reasonably believed to be serious and imminent, at work or at large, that he could not otherwise reasonably avert.

The claimant had genuine concerns about the pandemic, and about the safety of his children, but the tribunal had made various findings that counteracted the claimant's contention that serious and imminent circumstances of danger prevented him returning to work. These included the risk assessment which his employer had carried out, which allowed for social distancing, sanitisation of workspaces, and staggered start and finish times. It also found that the claimant had driven a friend to the hospital (the day after leaving work) when he was supposed to be self-isolating, and had worked in a pub during lockdown. The Employment Appeal Tribunal (EAT) had then concluded that there were steps that could have been taken by the claimant to avert the danger at work, including wearing a mask, socially distancing and handwashing in the same way as he did outside the workplace.

The Court of Appeal held that, for the purposes of a claim brought under section 100(d), there is nothing requiring the danger to 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, and it is immaterial that the same danger may be present outside the workplace.

Take note: The decision in Rodgers shows that it is not enough for an employee to have had genuine concerns about the pandemic; they must be able to show that they reasonably believed that circumstances of danger were "serious and imminent", and that they are subject to this danger as a result of being in the workplace.