1/ The EAT's judgment in Rodgers v Leeds Laser Cutting has been handed down, but hasn't yet reached the National Archives or EAT website, & I'm not technically proficient enough to upload a copy. Which means you'll have to take my word about what it says!
#ukemplaw
2/ The case involves a laser operator who, at the very start of 1st lockdown stopped going in to work. He had a young child with sickle cell anaemia & a young baby at risk as well. R was concerned about their risk of catching Covid.
3/ R's workplace was massive - the size of 1/2 a football pitch, usually with only 5 people working there. Social distancing wasn't a problem. LLC had also taken expert safety advice & put in place plenty of Covid precautions.
4/ R managed to get a self-isolation note from NHS 111 for a 6 day period to 3.4.20 but then didn't go in or contact the employer the following 3 weeks. He was then issued his P45 (he'd only been working there 7 months so had no ordinary unfair dismissal protection yet).
5/ During the period of isolation, R's neighbour broke his leg. R kindly took him to hospital - a good neighbour, but somewhat undermined his concerns about needing to isolate for his child.
6/ When R was dismissed, he brought a claim for automatic unfair dismissal under the circumstances of serious & imminent danger provisions at s.100(1)(d)&(e) ERA
7/ His claim failed before the ET. The EJ didn't view R's credibility favourably, finding R had acted inconsistently with concerns of danger, had changed his story as to why he needed to isolate & didn't have concerns directly attributable to the workplace.
8/ Crucially, the EJ didn't find R's belief of serious and imminent danger to be objectively reasonable.
R appealed asserting a belief in serious & imminent danger at large could amount to an objectively reasonable belief that the workplace presented a serious & imminent danger
9/ Whilst the EAT rejected the appeal, finding the EJ entitled to have reached the conclusion reached in this case, there are some useful principles and guidelines for the future.
10/ The appeal was focused solely on s.100(1)(d), & HHJ Tayler broke the test down into 6 parts whilst making clear that it's not an error to not follow the same dismembering as long as no component part is overlooked.
11/ The 1st part concerns circumstances of danger. The EAT considered whether that was a solely objective question or whether the test was a subjective/objective reasonable belief. Whilst leaning to the latter view, it reached no conclusion, though gave a nice green gas analogy!
12/ The EAT made clear that it wasn't necessary for the circumstances of danger to be generated by the workplace itself.
13/ The remainder of the s.100(1)(d) test was straightforward & agreed between the parties.
14/ The EAT found the ET had found R didn't believe there to be serious & imminent circumstances of danger in his workplace, noting in particular R's acceptance that the precautions of the workplace made it safer than society at large.
15/ Whilst a threat at large could lead to a genuine belief in serious & imminent circumstances of danger preventing a return to work, it was not so in this case. The EAT noted a host of findings of fact going against the EJ allowing the claim. The conclusion was a legit one.
16/ HHJ Tayler concluded by noting that whilst the pandemic could, in principle, be relied on in a successful s.100(1)(d) claim, it failed on the facts in the present case.
17/ Making the brilliant & innovative arguments for R were @42BR_Employment's appeal machine @RadBarrister leading @annadannreuther, instructed by Atkinson Rose, with Jonathan Gidney for the successful employer.
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