Testing Times: Reasonable belief in Health and Safety detriment claim and interplay with disability definition: Miles v Driver and Vehicle Standard Agency [2023] EAT 62

The Claimant had chronic kidney disease and was employed as a driver examiner at the Pontefract Driving test centre.  In March 2019 all but critical driving tests ceased due to the Covid pandemic.  In July 2020, driving tests commenced again and the Respondent required  driving examiners to return to work, including even those who like the Claimant were considered to be clinically vulnerable. Only those who were clinically extremely vulnerable were not required to return to work.   In July, the Claimant raised concerns about returning to work saying that he did not think it was safe to return to work because of his serious kidney condition and his wife’s heart condition “until the Covid situation improved” and raised concerns that it was not possible to socially distance in a car. The Respondent replied that safety measures were to be put in place and asked if there were any additional adjustments the Claimant required. The safety measures included reducing the number of daily tests, requiring the use of face coverings by examiner and candidate, the washing of hands and cleansing of the vehicle, avoidance of physical contact and use of a tablet to record results. The Claimant refused to return to work stating that he believed he was at serious risk because of his condition and that no adjustments would resolve his concerns.  The Claimant was put on unpaid leave from the 6th August. The Claimant resigned on the 10th August 2020.  He brought claims of health and safety detriment and dismissal under sections 44(1)(c) and (d) and s 100(1)(c), unfair constructive dismissal and disability discrimination. 

All claims failed before the employment tribunal.  The tribunal found that although the Claimant 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 and safety, there was a health and safety representative for the Pontefract office, although not at the Pontefract office, to whom the Claimant had sent a collective grievance, but had not appreciated it was for the designated and Health and Safety committee, and therefore the claims under s 44(1)(c) and 100(1)(c) failed.  In relation to s 44(1)(d) the tribunal held that the Claimant could not hold a reasonable belief in a serious and imminent danger to himself given the measures put in place by the Respondent.  The Tribunal found that the Claimant was not a disabled person, despite having  a physical impairment, because his decision to return to work was not as an effect of his impairment but of his unreasonable belief.

On appeal, HHJ  Tayler found that the tribunal had been entitled to dismiss the claims under s 44(1)(c) and 100(1)(c) on the basis that it was sufficient that there was a safety representative or committee for the place at which the Claimant worked. Section 44(1)(c) refers to the place at which the employee works: it is the employee who is to work at that place, even if absent from time to time. Once the place at which the employee works has been identified, it must then be determined whether it is a place where there is such a representative. Whilst the literal reading would require the safety representative or committee to be at the same place, the section can be sensibly be interpreted to require that the place at employee works is one where is a representative or committee, albeit that the representative or committee may be based at some other location provided they cover the place at which the employee works.

In relation to section 44(1)(d), the questions to be answered were set out in Rodgers v Leeds Laser Cutting Limited [2023[ ICR 356 : did the employee believe that there were circumstances of serious and imminent danger at the workplace at the date he refused to return, and if so, was that belief reasonable.  On the facts of this case, although the tribunal had been critical of the employee for failing to seek a referral to Occupational Health and his fixed approach to the need to maintain a two metre distance, the tribunal had analyzed all the factors and entitled to conclude that the Claimant did not hold a reasonable belief.

When considering whether the Claimant was disabled, the tribunal fell into error when assessing substantial adverse impact when considering the Claimant’s refusal to return to work. The Claimant relied upon the fact that he avoided going shopping in person and did not go into work because of the significantly enhanced risks to him of Covid.  The tribunal held that the Claimant did not go to work not because of his condition but because of his unreasonable belief but did not specify what the unreasonable belief was. The tribunal had concluded the Claimant did have a reasonable belief of circumstances connected with his work which were harmful to health but not a reasonable belief in serious and imminent danger to safety.   It did not follow that the employee could not establish that the effect on his normal activities resulted from his impairment because he had failed to establish reasonable belief in serious and imminent danger. In Da Silva Prima v Carl Room Restaurants Limited [2022[ IRLR 94, HHJ Auerbach had considered the situation where a person had a genuine but irrational belief that she had to avoid certain activities because of her existing and previous medical conditions, and concluded that because the complainant had taken the decision to refrain from a particular activity on account of their impairment, such a decision would not necessarily break the chain of causation.  The underlying basis of causation would be established by objective medical evidence either that the impairment does not affect the ability to engage in that activity or that the harmful impact would have ensued had they indulged in the activity.  On the facts of the instant case, the matter was remitted to whether there was a break in the chain of causation that prevented the Claimant’s decision not to return to work being a substantial adverse effect that resulted from his impairment.

Miles v Driver and Vehicle Standards Agency (Disability Discrimination, Health & Safety) [2023] EAT 62 (28 April 2023) (bailii.org).

Gillian Crew

Call 1998

05.05.2023