Edwards & Ors v The Secretary Of State For Justice

Under Employment Rights Act 1996, section 44(1)(d) and (e), the tribunal must determine each employee’s actual belief, whether it amounted to a belief in serious and imminent danger, and whether that belief was reasonable. It must resolve material disputes about information available to each employee and address material individual evidence.

A conclusion that danger was not reasonably believed cannot rest solely on the fact that colleagues completed the same journey without accident. The absence of an accident on a limited number of journeys does not itself negate risk. Reasons must explain the findings and reasoning sufficiently to permit appellate review.

Eight prison officers attended their designated collection point during snowy conditions, after the road to HMP Dartmoor displayed a road-closed sign. They declined transport in prison four-wheel-drive vehicles and the Secretary of State withheld a day’s wages.

An Employment Judge dismissed their claims under section 44 and section 13 of the Employment Rights Act 1996. The officers appealed. The central issue was whether the Employment Judge had adequately determined their individual reasonable beliefs that travel involved serious and imminent danger.

1. Appeal allowed in part. The dismissal of the section 44 claims could not stand. It was remitted for a rehearing before a different Employment Judge.

2. Section 44(1)(d) and (e) required proof of circumstances of danger and of the employee’s reasonable belief that the danger was serious and imminent. The tribunal had to identify what each claimant actually believed, decide whether that belief concerned serious and imminent danger, and determine its reasonableness.

3. The Employment Judge’s reasons were inadequate under Meek. A material factual dispute was left unresolved: whether the claimants had been told that the police had authorised prison vehicles to use the closed road. That information could materially affect whether a belief in serious danger was reasonable.

4. The Employment Judge also failed to address individual evidence concerning road conditions and the information available to particular claimants. Although he had correctly directed himself that the claimants required individual consideration, he treated them globally without making the necessary findings.

5. It was erroneous to reason that claimants could not reasonably believe there was serious and imminent danger because colleagues had completed the journey without difficulty or accident. The relevant assessment depended on what each claimant knew or had been told. A small number of uneventful journeys did not establish an absence of risk.

6. Section 44(1)(c) was not engaged. The detriment alleged was the withholding of pay because the claimants declined to travel to work, rather than because they had raised safety matters with their employer.

7. The separate submission that attendance at the collection point itself entitled the claimants to pay was rejected. Attendance was for onward transport to work. If transport was unreasonably refused, attendance at the collection point did not create an entitlement to wages.

• Employment Appeal Tribunal: Allowed the appeal in part and remitted the section 44 claims for rehearing before a different Employment Judge: [2014] UKEAT 0123_14_2407.
• Employment Tribunal: Employment Judge Hollow, sitting at Exeter, dismissed the claims on 13 November 2013.