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Employment law round up – EAT rules on health and safety case arising out of the Covid-19 pandemic, and what has happened to the Employment Bill?

Posted: 12/05/2022

It was not just Her Majesty who was notably absent from the Queen’s Speech earlier this week. Also missing was any mention of the much-heralded Employment Bill, which was first proposed in 2019. Among other things, the bill was expected to introduce a revised flexible working regime, the right for all workers to request a more predictable contract after 26 weeks' service, extended redundancy protection for pregnant women and those on maternity leave, and statutory paid leave for parents whose babies are in neonatal care.

It was also anticipated that the bill would include a requirement for employers to pass on all tips to workers without any deductions, following an announcement from the Business Secretary in September 2021 (see our e-brief), and the introduction of a statutory code of practice setting out how tips should be distributed, to ensure transparency and fairness. According to a government source, these plans have now been shelved “for the foreseeable future”, and it is not clear what is the future for these proposals, or any of the measures that were expected in the bill.

Health and safety and the Covid-19 pandemic

In other news, the Employment Appeal Tribunal (EAT) has given its first decision on health and safety issues arising out of the Covid-19 pandemic. In Rodgers v Leeds Laser Cutting the EAT upheld the decision of the employment tribunal (ET), finding that an employee who refused to attend the workplace at the height of the pandemic was not automatically unfairly dismissed.

Mr Rodgers, a laser operator, was dismissed by his employer after he refused to attend his workplace, a large warehouse, during the first national lockdown because of his fears for the health of his children, who were vulnerable. Mr Rodgers’ employer carried out a full risk assessment at the start of the pandemic and had already implemented many of its recommendations, such as social distancing.

He brought a claim before the ET arguing that his dismissal was automatically unfair contrary to section 100 of the Employment Rights Act (ERA). This provision applies where an employee leaves or refuses to return to the workplace in circumstances of danger, which he reasonably believed were serious and imminent and which he could not reasonably have been expected to avoid (section 44 of the ERA grants similar protection to workers suffering any detriment in these circumstances).

The ET dismissed Mr Rodgers’ claim, holding that his concerns about the pandemic were general concerns and did not specifically relate to his place of work. His refusal to return to his place of work until after the national lockdown had ended was not reasonable. In addition, other actions taken by Mr Rodgers, such as his failure to wear a face mask and leaving his home during self-isolation, did not suggest that there were circumstances of danger which he believed to be serious and imminent.

Mr Rodgers appealed to the EAT.

EAT decision

The EAT upheld the ET’s decision and found that, in principle, an employee could be prevented from returning to the workplace due to a reasonable belief in serious and imminent circumstances of danger which arise outside the workplace itself. However, in this case, the ET had been entitled to find that Mr Rodgers did not reasonably believe that there were circumstances of danger that were serious and imminent, at work or at large, that prevented him from returning to his place of work.

Even if this were not the case, the ET was entitled to find that Mr Rodgers could have taken reasonable steps to avoid such danger, both in the workplace and at large, such as maintaining social distancing and wearing a face mask.

Mr Rodgers’ appeal was therefore dismissed.

What to take away

This case is significant as it is the first health and safety case arising out of the Covid-19 pandemic to be considered by the EAT. The facts arose at the height of the pandemic, when health and safety fears and concerns around attending the workplace were very different from what they are today; however, the case does provide a useful illustration on how the courts will approach section 100 claims generally, and is a reminder that the employee’s concerns must relate to a specific workplace threat, rather than a general health and safety concern.

This case was very fact-specific – Mr Rodgers worked in a large, sparsely populated workspace, and his behaviour suggested that he did not particularly have any health and safety concerns, whether relating to the workplace or more generally – and it would be interesting to see how the EAT would approach a section 100 claim in different circumstances.

One of the issues faced by employers as they adapt to the ‘new normal’ is how to encourage staff back to the workplace, particularly where employees have – or claim to have – ongoing health and safety concerns. The EAT’s decision in this case may be helpful to those employers who are faced with such ‘reluctant returners’.

For further information on how any of the above issues might affect your organisation, please contact Paul Mander or your usual Penningtons Manches Cooper contact.

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