Most unfair dismissal claims require an employee to have at least two years of continuous employment before they can bring a claim. But a small and important category of dismissals is treated differently: automatically unfair dismissals, where the reason for the dismissal is so objectionable in principle that no qualifying period is required and no range of reasonable responses test applies. One of the most litigated of these categories — particularly since the Covid-19 pandemic — is the dismissal of an employee who claims they were in serious and imminent danger at work.
This article examines the statutory framework, the key legal tests, the leading cases, and the practical lessons for both employees and employers.
The protection is found in section 100 of the Employment Rights Act 1996 (ERA 1996), which sets out five distinct grounds on which a health and safety dismissal will be treated as automatically unfair. The two most commonly relied upon in practice are:
Section 100(1)(d): the employee, in circumstances of danger which they reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, left (or proposed to leave) or refused to return to their place of work or a dangerous part of it.
Section 100(1)(e): the employee, in circumstances of danger which they reasonably believed to be serious and imminent, took (or proposed to take) appropriate steps to protect themselves or other persons from the danger.
The critical distinction between the two is this: s100(1)(d) applies where the employee simply left or refused to return to the workplace; s100(1)(e) applies where the employee stayed but took protective steps — such as raising concerns, demanding changes, or refusing to carry out a specific task. Both require the employee to have held a reasonable belief in the existence of serious and imminent danger. Neither requires that the danger was objectively real, provided the belief was reasonable.
There is also a built-in defence for employers under s100(3): even where s100(1)(e) is engaged, the dismissal will not be automatically unfair if the employer can show that the employee's steps were so negligent that a reasonable employer might have dismissed for taking them. This is a high bar and rarely succeeds in practice.
The phrase is not defined in the statute, and its meaning has been developed through case law. The starting point is the EAT's decision in Harvest Press Ltd v McCaffrey [1999] IRLR 778, in which the EAT confirmed that the word "danger" in s100(1)(d) is not limited to dangers arising from the physical state of the workplace or its equipment. It can extend to dangers caused by the conduct of other people — in that case, a colleague who had behaved in a threatening and aggressive manner. The EAT held that the tribunal had been right to find that the employee's belief in serious and imminent danger was reasonable, and that the dismissal was therefore automatically unfair.
The significance of Harvest Press is that it opened the door to a wide range of potential dangers beyond the obvious physical hazards — machinery, chemicals, structural defects — and confirmed that interpersonal dangers can qualify. This has since been applied in cases involving violent or threatening colleagues, inadequate security arrangements, and, most recently, infectious disease.
The most authoritative modern statement of the law under s100(1)(d) comes from the Court of Appeal's decision in Rodgers v Leeds Laser Cutting Ltd [2022] EWCA Civ 1659, the first appellate ruling to address s100 in the context of the Covid-19 pandemic.
Mr Rodgers was employed as a laser cutter. In March 2020, at the start of the first national lockdown, he stopped attending work, citing concerns about the risk of contracting Covid-19. He had a young child and a partner who was pregnant. He did not raise any specific concerns with his employer about the conditions at the workplace itself. His employer, Leeds Laser Cutting, had implemented handwashing stations and social distancing measures and operated from a large, well-ventilated warehouse with only a handful of employees present at any one time. Mr Rodgers was dismissed. He claimed automatic unfair dismissal under s100(1)(d).
The Employment Tribunal, the Employment Appeal Tribunal, and ultimately the Court of Appeal all dismissed his claim. The Court of Appeal took the opportunity to set out the questions that must be answered in any s100(1)(d) case:
| Step | Question |
|---|---|
| 1 | Did the employee believe there were circumstances of serious and imminent danger at the workplace? |
| 2 | Was that belief reasonable? |
| 3 | Could the employee reasonably have averted that danger? |
| 4 | Did the employee leave, propose to leave, or refuse to return because of the perceived danger? |
| 5 | Was that the reason (or principal reason) for the dismissal? |
The Court emphasised that the focus must be on the workplace itself, not the general state of the world. The pandemic as a background fact did not, of itself, create circumstances of serious and imminent workplace danger. What mattered was how the individual employer had responded to the risks — whether adequate precautions had been taken, whether the specific working environment posed a heightened risk. On the facts, the employer had followed government guidance, the premises were large and well-ventilated, and Mr Rodgers had not raised any specific workplace concerns. His claim therefore failed at step two: his belief, while genuine, was not objectively reasonable in the circumstances of his particular workplace.
The Court also confirmed that journeys to work are not covered by s100. The protections apply to dangers at the workplace itself, not to risks encountered on the way there.
Where an employee relies on s100(1)(e) — claiming they took appropriate steps to protect themselves — the analysis is more nuanced. The EAT's 2024 decision in Accattatis v Fortuna Group (London) Ltd illustrates the difficulties that can arise.
Mr Accattatis worked for a company that sold and distributed PPE. During the first Covid-19 lockdown, he repeatedly requested to work from home and to be placed on furlough, citing anxiety about using public transport and working in the office. His employer refused both requests on the grounds that his role could not be performed remotely and that the business needed to remain operational. He was dismissed. As he lacked two years' service, he brought a claim under s100(1)(e), arguing that his requests to work from home and to be furloughed were "appropriate steps" to protect himself from serious and imminent danger.
The Employment Tribunal dismissed his claim. It accepted that he had a reasonable belief in serious and imminent danger but found that his demands — for furlough (which he did not qualify for) and home working (which was not feasible) — did not constitute appropriate steps. Mr Accattatis appealed.
The EAT allowed the appeal and remitted the case. It held that the tribunal had failed to properly apply the objective test for "appropriate steps" under s100(2), which requires the tribunal to consider the employee's knowledge and the facilities and advice available to him at the time — including, in this case, the fact that some colleagues had been permitted to work from home. The tribunal had also erred by referring to "principal reasons" in the plural when the statute requires identification of a single principal reason for the dismissal. The case was sent back for reconsideration.
The Accattatis decision is a reminder that the "appropriate steps" question is genuinely fact-sensitive and that tribunals must engage carefully with the employee's perspective and the information available to them at the time — not simply with what the employer considered feasible.
The case law reveals several important principles for anyone involved in a s100 dismissal claim.
For employees, the key is to document the specific workplace conditions that gave rise to the concern — not just a general sense of unease, but identifiable features of the working environment: the layout of the premises, the adequacy of ventilation, the proximity of colleagues, the absence of protective equipment, or the conduct of a specific individual. General anxiety, without more, will not be sufficient. The steps taken must also be proportionate and reasonable given what the employee knew at the time.
For employers, the most effective protection is a demonstrable record of having taken the employee's concerns seriously, investigated them promptly, and implemented reasonable precautions. An employer who can show compliance with relevant guidance and a genuine engagement with the reported risk is in a much stronger position than one who dismissed the concern without inquiry.
For both parties, the question of the principal reason for the dismissal is critical. If the employer can show that the dismissal was for a different reason — poor performance, redundancy, misconduct — and that the health and safety concern played no part in the decision, the s100 claim will fail. Conversely, if the protected conduct was even a contributing reason, the claim may succeed.
Section 100 of the ERA 1996 provides meaningful protection for employees who genuinely believe they face serious and imminent danger at work. But it is not a blank cheque. The belief must be reasonable, the steps taken must be appropriate, and the danger must be located at the workplace itself. The Court of Appeal's decision in Rodgers and the EAT's analysis in Accattatis together provide a clear framework for evaluating these claims — one that demands careful, fact-specific analysis on both sides.
If you have been dismissed after raising health and safety concerns, or if you are an employer facing a s100 claim, specialist advice at an early stage can make a significant difference to the outcome. Christopher Mallon BL accepts direct access instructions from individuals and businesses and can advise on the merits of a claim, draft pleadings, and represent you at the Employment Tribunal.
Christopher Mallon BL is a direct access barrister practising in employment law, commercial law, and civil litigation. He is authorised and regulated by the Bar Standards Board.
Christopher accepts direct access instructions and is happy to discuss your matter in confidence.