In Miles v Driver & Vehicle Standards Agency the EAT held that the Claimant was not subjected to a detriment or a dismissal for health and safety reasons when he refused to go back to work as a driving examiner during the Coronavirus pandemic.
The Claimant was employed as a driving examiner and in November 2018, was diagnosed with chronic kidney disease. In March 2020, all but critical driving tests were stopped due to the Coronavirus pandemic. In July 2020 tests started up again and the Respondent required driving instructors to return to work, including those who were considered clinically vulnerable (as the Claimant was), but not those who were clinically extremely vulnerable.
Although the Respondent sought advice and implemented several reasonable adjustments, the Claimant refused to return to work as he believed he would be at serious risk due to his condition and as such, his pay was stopped. The Claimant resigned in August 2020.
The Claimant brought claims of health and safety detriment and dismissal, constructive dismissal, and disability discrimination. In particular he claimed, under s.100(1) of the Employment Rights Act 1996, that there were circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety and that he would be in serious and imminent danger if he returned to work. The ET dismissed his claim because he worked at a place where there was a health and safety representative or committee with whom the concerns could have been raised. For this reason the claim could not be brought because it is a requirement of section 100(1) that there is was either no health and safety committee or if there was, that it was not reasonably practicable for the concerns to be raised with them. In addition, the Tribunal dismissed the claim because it did not consider the Claimant held a reasonable belief that there was a serious and imminent danger.
The Claimant appealed and the EAT agreed with the Tribunal that the presence of a safety representative or safety committee for the place at which the Claimant worked, was sufficient to preclude him from bringing a claim under the relevant legislation because he could have raised the issue with them. The EAT did not consider it made a difference that there was no representative or committee at the employee’s actual workplace as a sensible interpretation of the legislation would include a representative or committee covering the workplace, even if they were not physically based there.
This case is a reminder that this less commonly used automatic unfair dismissal ground on the basis of health and safety can only be used in certain circumstances and steps should always be taken to consider this when defending any claim. In particular an assessment should be undertaken of whether there is a health and safety committee or representative covering the employee’s place of work, even if they are not physically based there. In addition, employers should consider whether it would have been reasonably practicable for the employee to have raised the health and safety issue with them rather than take steps to stay away from the workplace.
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