Was the Claimant subjected to a detriment and/or dismissed for health and safety reasons when he resigned his employment having refused to go back to work as a driving examiner during the Coronavirus pandemic?
No, held the EAT in Miles v Driver & Vehicle Standards Agency.
The Claimant was a driving examiner who suffered from Chronic Kidney Disease (CKD). Employees (including those, like the Claimant, who were clinically vulnerable) were asked to return to work during the Coronavirus pandemic. The Respondent had taken advice from HSE and put measures in place to minimise the risk to health. The Claimant stressed he felt there was a serious risk to his health and safety owing to his CKD and that no adjustments could be made to resolve those concerns. Having refused to return, the Claimant was placed on special unpaid leave and resigned.
The Claimant brought a raft of different claims. In relation to his health and safety claims the EAT agreed with the tribunal that:
- He could not claim detriment and/or dismissal for raising circumstances which he reasonably believed were potentially harmful to his health and safety because this claim can only be brought where there is no health and safety representative or safety committee at the location. There was one in this case.
- His claim for detriment and/or dismissal for refusing to return to work in circumstances where he reasonably believed he was in serious and imminent danger failed. It had been open to the tribunal to find that his belief in serious and imminent danger was not reasonable, given that his employer had put measures in place to mitigate risks to health.
The Claimant’s claims of constructive dismissal and disability discrimination were remitted as the tribunal had wrongly applied the test for disability - concluding that the Claimant had stayed-away from work (which it rightly characterised as a substantial adverse effect) not because of his condition but because of an ‘unreasonable belief’.
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