When considering whether it is reasonable for a claimant to resign because of health and safety concerns, tribunals have to consider whether they faced “serious and imminent” danger, among other things.
In Miles v Driver and Vehicle Standards Agency (DVSA), the EAT agreed with the tribunal that although Mr Miles reasonably believed that conditions at his work might be harmful to him, they did not present a serious and imminent danger to his health.
Mr Miles’ union, PCS, instructed Thompsons to act on his behalf.
Basic facts
Mr Miles, a driving examiner, was diagnosed in November 2018 with chronic kidney disease (CKD). In March 2020, all driving tests ceased as a result of the coronavirus (COVID-19) pandemic and he was put on paid leave. When the tests started again in August, he was told that as he did not fall within the “clinically extremely vulnerable category”, he had to return to work.
Following advice from the government, the DVSA made several adjustments to its usual work practices. However, as Mr Miles still refused to return to work, his pay was stopped. He resigned on 10 August 2020 and brought claims of health and safety detriment and dismissal under sections 44(1)(c) and (d); and sections 100(1)(c) and (d) respectively of the Employment Rights Act (ERA), among other things.
Relevant law
Section 44(1)(d) stated that, in order to avoid a detriment, employees have the right to refuse to return to work if there are “circumstances of danger which the worker reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert”. (This section is now section 44(1A)). Section 100(1)(d) applies the same criteria to dismissal.
Section 44(1)(c) gives employees the right not to be subjected to a health and safety detriment, as long as they have brought the circumstances of the situation which they believed were “harmful or potentially harmful to health or safety” to their employer’s attention. Section 100(1)(c) applies the same criteria to a dismissal. These claims can only be brought, however, if there is no union workplace health and safety representation, or if there is, that it was not reasonably practicable for the employee to raise the issue via that mechanism.
Tribunal decision
The tribunal agreed that there were ”circumstances” connected with Mr Miles’ work which he reasonably believed were harmful or potentially harmful to his health or safety. However, as there was health and safety representation that he could have accessed (albeit not based at his specific office), his claims under sections 44(1)(c) and 100(1)(c) could not succeed.
Taking into account government guidance and the steps that the DVSA had taken, the tribunal also dismissed his complaints under sections 44(1)(d) and 100(1)(d). Interpreting a “danger” to mean a hazard to health, the tribunal held that the various mitigating measures that the DVSA had put in place would have provided reasonable protection. It took the view that had Mr Miles informed himself properly, rather than reached a premature conclusion, he would have reasonably formed that view.
It, therefore, concluded that although Mr Miles reasonably believed that the circumstances at work were harmful to his health, it was not reasonable to believe that they presented a serious and imminent danger to him.
EAT decision
The EAT held that although the literal interpretation of section 44(1)(c) required safety representation to be located at the employee’s place of work, the tribunal was correct to interpret it as meaning access to representation, as in this case.
Its decision that Mr Miles did not hold a reasonable belief in a serious and imminent danger to himself for the purposes of sections 44(1)(d) and 100(1)(d) was also open to it as part of the multifactual analysis that it had applied. This was not perverse, nor did it involve an error of law.
However, it was at odds with the finding that the same belief was reasonable in the context of section 44(1)(c). For that reason, it upheld the appeals relating to the disability finding, and the finding that the constructive dismissal was unfair. The case will now return to the employment tribunal.
Comment
If this dismissal fell within the band of reasonable responses, then it is surely clinging to the frayed edge of it by its fingernails. The claimant had the CKD diagnosis, the official health advice showing the enhanced risk to those with CKD, and the official mortality statistics showing that those in driving occupations were dying at 2.5 times the national average rate. He shared it all, at the time, with the respondent (his employer) in the days where daily infection rates were above 310,000, over 41,000 people had already died, and a vaccine was still a wish away. Yet, still he was expected to sit next to a new stranger every 60 minutes and take his chances. It is hard to imagine a more meritorious Covid-era case than this one.
The pandemic asked a lot of the pre-existing health and safety protections. They were enacted to deal with isolated or self-contained dangers, not rampaging viruses. It was always a concern that the fear of the floodgates opening would be reflected in tribunals finding new elasticity in the ‘band of reasonable responses’ test. The fact that almost no Covid health and safety claims have succeeded suggests that this concern was justified.
Another pandemic is inevitable, and it will be interesting to see whether these provisions will be reviewed in the face of this uncomfortable reality.