Covid's long tail

The case of Rodgers -V- Leeds Laser Cutting Ltd [2022] EWCA Civ 1659 was the first case to reach the Court of Appeal dealing with both Covid 19 and Section 100 (1) (d) of the Employment Rights Act 1996. In particular, that section gives the employee the right to absent themselves from the workplace where the employee believes that there were circumstances of serious and imminent danger at the workplace. Ultimately, Mr Rodgers’ claim failed at the Court of Appeal, as the finding of the Employment Tribunal had been that in fact he was absenting himself from work because of a generalised risk of Covid rather that a specific one related to the workplace which was upheld.

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This was a critical distinction. In the case of Rendina v Royston Veterinary Centre Limited ET/3307459/2020 the Claimant was employed as a vet from 28th August 2018 to 6th October 2020. She suffered from severe asthma and with Covid suggested that certain protocols were put in place regarding the treatment of the animals and their separation from their owners who potentially could pass on Covid. The clinic failed to adopt these suggestions and she was dismissed. Following her dismissal she brought a case, but it was related to a health and safety reason and for making a protected disclosure. The tribunal held that it was reasonable for her to have the belief that her health and safety was being endangered.

?The important distinction between these two cases is the risk being particular to the workplace rather than a generalised risk. Given that one of the reasons that people were allowed to leave their homes during lockdown was to go to work, it meant that it was perfectly legal for Leeds Laser Cutting Ltd to require Mr Rodgers to attend work. The obligation on the employer in the unusual circumstances of the lockdown in the Covid pandemic was to make the workplace as safe as reasonably possible. That might have meant social distancing and working from behind screens.

?My particular interest for 2023 is the long tail of Covid which seems to have resulted in considerable mental health issues. Many people were physically absent from work for long periods or working from home and not necessarily used to the pressures of the workplace. All employers have an obligation (providing they employ more than 5 employees) to produce a written Health and Safety policy and record the significant findings of risk assessment and any its of employees identified by it as especially at risk.

?Over the years the application of Section 100(1d) ERA1996?has tended to be used to apply to physical risk such as, for example, asbestos or safe working methods with equipment. The risk to an employee’s mental health thereby entitling that employee to absent from the workplace on the grounds of serious and imminent danger have tended not to be considered. I believe this will change.

?An employee who believes that they are subject to bullying and harassment and that this is having a significant impact on their mental health may well, if the employer has taken no mitigating action, allow that employee to remain away from work until the problem is solved. That might be a resolution of the grievance or some other step that may be required but not taken. The days of being able to brush employees with a general description of “snowflakes” have gone. If an employee is absent from work for mental health reasons, the minute a medical certificate records that they are absent because of “stress at work” the employer should immediately be considering their next action. If the employer has the resource available or can afford it, then Occupational Health may well be the next step as Occupational Health will record recommendations about steps to be taken as to reasonable adjustments to permit the employees return. If these are all undertaken promptly then the employer may well be safe from claims. However, if the employer rejects those recommendations or decides not to implement, then the employer will need to justify that failure initially perhaps in any conduct or ill health dismissal but potentially in front of a tribunal.

?Actions need to be measured against that stress risk assessment before any further steps can be taken hence the desirability of an occupational health assessment. Importantly an employee who remains absent from work because of the perceived risk to their health because of circumstances of serious imminent danger would, I believe be subjected to a detriment if they were not paid during this period of absence. Here we are not talking about statutory sick pay but pay at their normal rates.

?The case of Rodgers -V- Leeds Laser Cutting Limited makes the important distinction between a generalised risk and one which is not particular to the workplace. Legitimate concerns ?might amount to fears of late-night travel for a nurse on public transport going home after a nightshift. Whilst this would not be a risk particular to the workplace it may nevertheless be a concern that could require reasonable adjustments for the sake of the employee’s mental wellbeing and physical wellbeing, Large city centre employers tend to pay for taxi transport for employees working late. This is unlikely to be a perk that is made available to workers in other sectors.