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Health and Safety Dismissal and Detriment

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Was an employee who resigned after refusing to attend at her workplace during the COVID-19 pandemic unfairly dismissed on health and safety grounds?

Yes, held the Employment Appeal Tribunal in Herve v Goldstein

The Claimant worked from an office at the Respondent’s family home. In the first national lockdown, the Claimant, whose partner was vulnerable, worked at her own house. When the first lockdown lifted, she began to attend the office one day every two weeks.

When the second lockdown started in November 2020, she said she would work from home full-time. She felt there was no social distancing or mask enforcement at the Respondent's family home. She was also concerned about travelling on public transport.

The Respondent objected and said that the hybrid arrangement should continue. The Claimant resigned. The Respondent sent her a message accusing her of unprofessional conduct and malingering.

The tribunal held she had been automatically unfairly dismissed and subjected to detriment on health and safety grounds. The EAT, agreeing with the tribunal, held:  

- The Claimant had raised circumstances connected with her work (which could include travel to and from work) which she reasonably believed were harmful or potentially harmful to health and safety. She had been subjected to detriment as a result (including criticism of her work and failure to pay notice pay and holiday pay).

- The Claimant had refused to return to the workplace at the start of the second lockdown in circumstances of danger which she reasonably believed were serious and imminent.

- The Respondent breached trust by objecting to her refusal and pressing the Claimant to attend. The Claimant resigned in response to this. She had been constructively dismissed. This dismissal was automatically unfair on health and safety grounds.