E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4105346/20 (V) Held on June 2021 Employment Judge J M Hendry Mr H Nesterovas v Macduff Shellfish Scotland Ltd — 2020

The claimant, Mr Rodgers, worked for Leeds Laser Cutting Limited as a laser operator from 14 June 2019. The tribunal accepted that he was dismissed, but the case was pleaded as automatically unfair dismissal under s.100(1)(d) and (e) ERA 1996 because he said he stayed away from work in response to serious and imminent danger arising from Covid-19. The tribunal noted that he did not have two years' service and therefore could not bring an ordinary unfair dismissal claim.

On the facts, the tribunal found that the workplace was a large warehouse-type space with a small number of people on the shop floor, that some Covid-19 measures were already in place by late March 2020, and that the claimant could socially distance for most of his role. It found that he did not ask for a mask and was not refused one, that he was not forced to do delivery work, and that his concerns were not raised to management in a way that amounted to meaningful complaints about serious and imminent danger in the workplace. The tribunal also found that his 29 March 2020 text said he would stay off work until the lockdown had eased and referred to his vulnerable family, not to unsafe workplace conditions.

Applying the statutory tests and the approach in Oudahar v Esporta Group Ltd, the tribunal held that the claimant did not reasonably believe there were circumstances of serious and imminent danger within the workplace, and that any such belief would in any event not have been objectively reasonable. It found that he could reasonably have averted any danger by following the guidance then available, including distancing, PPE and handwashing, and that absenting himself entirely was not an appropriate step on the evidence before it. The tribunal also found that he did not take appropriate steps to communicate any belief of serious and imminent danger to the respondent.

The tribunal therefore concluded that neither s.100(1)(d) nor s.100(1)(e) was engaged, and the automatically unfair dismissal complaint was dismissed. The judgment records no monetary award.