Was an employer’s expectation that a driving instructor return to work during the Coronavirus pandemic a detriment and/or dismissal for health and safety reasons?
No, ruled the Employment Appeal Tribunal (EAT) in the recent decision of Miles v Driver & Vehicle Standards Agency [2023].
Facts
The EAT heard an appeal brought by Mr Darrell Miles (DM) against findings of the Employment Tribunal (ET) that he had not suffered health and safety detriment and/or dismissal, been constructively dismissed or suffered disability discrimination at the hands of his employer, the Driver & Vehicle Standards Agency (DVSA).
DM suffered chronic kidney disease (CKD). Employees who were clinically vulnerable, including DM, were asked to return to work in July 2020 during the pandemic. DVSA took advice from the Health and Safety Executive and Public Health England and made several adjustments to minimise the risk to health.
Despite these DM felt there remained serious risk to his health and safety due to his CKD. He was placed on special unpaid leave when he refused to return to work, and DM ultimately resigned 10 August 2020.
Law
Section 44 of the Employment Rights Act 1996 (ERA) (as applicable at the time) set out the statutory tests when considering claims for detriment in health and safety cases as follows:
S44 Health and safety cases
(a) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that —
(b) being a representative of workers on matters of health and safety at work or member of a safety committee —
(i) in accordance with arrangements established under or by virtue of any enactment, or
(ii) by reason of being acknowledged as such by the employer,
the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee,
(c) being an employee at a place where —
(i) there was no such representative or safety committee, or
(ii) there was such a representative or safety committee, but it was not reasonably practicable for the employee to raise the matter by those means,
he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially
harmful to health or safety,
(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert,
he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or
other persons from the danger.
The relevant section 100 of ERA (relating to dismissals as opposed to other detriments) is in similar terms to the above section 44.
Decision
On the health and safety detriment/dismissal claims the EAT agreed the ET correctly decided:
- the s44(1)c) and s100(1)(c) claims. This was because the employer had a health and safety representative/committee for DM’s work location so he could not rely on a detriment because of his own raising of concerns to his employer and it would have been reasonably practicable for DM to raise the issues through those channels.
- the s44(1)(d)/(e) and s100(1(d)/(e) claims in ruling that DM did not hold a belief in a “serious and imminent” danger to himself, albeit the ET had accepted DM held a reasonable belief the circumstances were harmful or potentially harmful. That was not enough to meet the “serious and imminent” statutory test, particularly as the employer had put measures in place to reduce health risks.
The EAT sent the constructive dismissal and disability discrimination claims back to the ET for further consideration as it had applied the legal tests incorrectly in its decision making in the claims for discrimination because of something arising in consequence of his disability and failure to make reasonable adjustments.
Comment
Katherine Irvine, Associate in our Employment team comments:
“This claim should not be viewed simply as a “Covid” case – it is equally important in non-Covid times. Here the employer had put in place Standard Operating Procedures, reducing the number of daily tests from 7 to 5, required face coverings, washing of hands, and cleansing of vehicles, avoiding physical contact and use of a tablet to record results, ventilation of vehicles and no tests being undertaken if an examiner or candidate was unwell.
“The case demonstrates that even out with pandemic times, an employer taking reasonable steps to have in place health and safety representatives/committees for employees to report matters to, assess, and address any potential risks by way of risk assessments and where necessary protocols and procedures, will greatly reduce the risk of successful claims and serve as good documentary evidence in defence of any claims that are raised.
“It is always advisable to seek legal advice when an employee raises issues of health and safety, even if their willingness to work is not the immediate issue. These can result in complex and expensive claims with uncapped awards if the dispute reaches litigation.”
This article was published on 20 June 2023.
