The EAT has upheld an employment tribunal's decision that an employee with chronic kidney disease who refused to return to work due to COVID-19 did not hold a reasonable belief in serious and imminent danger to himself and had not therefore suffered health and safety detriment or dismissal.
THE FACTS
Mr Miles was employed by the Driver and Vehicle Standards Agency ("DVSA") as a driving instructor. The DVSA stopped providing almost all driving tests in March 2020 because of the pandemic and Mr Miles, and other instructors, were put on paid leave. In July 2020, the DVSA asked all driving instructors to return to work except those who were clinically extremely vulnerable. Drivers who were clinically vulnerable were, however, required to return to work. This was in line with guidance and advice from the Government and Public Health England. The DVSA also took advice and made several adjustments to its normal working practices.
Mr Miles suffered from chronic kidney disease and was clinically vulnerable. He refused to return to work, saying that no adjustments would resolve the concerns he had about his health. He was placed on unpaid leave, and he resigned. He brought claims in the employment tribunal of health and safety detriment and dismissal, unfair constructive dismissal and disability discrimination.
This alert looks at the health and safety detriment and health and safety dismissal claims. These claims were brought on two grounds.
First, Mr Miles asserted that he had "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". This claim could only be brought if Mr Miles worked at a place where there was no health and safety representative or committee. The employment tribunal found that there was a health and safety committee and representative for the office in which Mr Miles worked, although they were not based in that office, and Mr Miles could reasonably have raised his concerns with them (he had not done so). The tribunal held therefore that Mr Miles could not bring this claim. Mr Miles appealed to the EAT, which dismissed his appeal, holding that it was sufficient that there was a health and safety representative and committee for his workplace, even if they were not based at the workplace.
Secondly, Mr Miles argued that he had suffered health and safety detriment and dismissal because he refused to return to work in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert. The tribunal dismissed this claim, finding that it had not been reasonable for Mr Miles to believe that there was a serious and imminent danger to himself. It held that he had formed a "fixed view" that nothing less than social distancing of two meters would be safe for him, and regarded any other measures as insufficient. The tribunal considered that his assessment of risk had "lost objectivity". He had obtained no medical opinion about the extent of his physical impairment and any risks specific to him, and had not asked for an Occupational Health referral (which his GP had recommended). He had also been given material from Kidney Care UK which would have been likely to establish that he fell at the lower end of risk of those with his condition, and that should have led him to review his opinion.
Mr Miles appealed to the EAT, which dismissed his appeal, agreeing with the analysis the tribunal had undertaken in determining whether he held a reasonable belief in the risk to his health and safety. This had been a multi-factorial analysis, looking at legislation, government and Public Health England guidance relevant at the time he had left the workplace, as well as the steps that the DVSA had taken to minimise risks.
WHAT DOES THIS MEAN FOR EMPLOYERS?
While COVID-19 related claims against employers are (hopefully) nearly at an end, this case will be relevant to other circumstances in which employees might argue that they were in imminent danger in the workplace. It is a reminder to employers of the importance of following up to date health and safety guidance, of making reasonable adjustments for disabled employees, and having appropriate health and safety representatives in place for that particular workplace (even if they are not based at that particular workplace).
