Darrell Miles v Driver and Vehicle Standards Agency

For Employment Rights Act 1996 health-and-safety protection, a workplace is a place where there is a safety representative or committee if that representative or committee covers the workplace, even though based elsewhere. An employee must reasonably believe that danger is both serious and imminent to rely on the protections for leaving or refusing to return to work.

In determining disability, a tribunal must assess objectively whether an impairment caused a substantial adverse effect. It must nevertheless give coherent reasons where findings concerning the employee’s belief about health risks under one statutory regime appear inconsistent with its conclusion on causation under another.

The claimant, a driving examiner with chronic kidney disease, declined to return to driving tests when they resumed during the Coronavirus pandemic. The respondent treated him as clinically vulnerable, introduced protective measures, and stopped his pay when he would not return. He resigned.

The Employment Tribunal dismissed claims for health-and-safety detriment and dismissal under Employment Rights Act 1996, ordinary constructive unfair dismissal, disability discrimination and failure to make reasonable adjustments. It found that the claimant reasonably believed that work could be harmful to health, but not that there was a serious and imminent danger. It also held that he was not disabled.

The claimant appealed. The central issues were the meaning of a workplace having a safety representative or committee, the reasonableness of his belief in serious and imminent danger, and whether his impairment caused a substantial adverse effect on normal day-to-day activities.

1. Appeal allowed in part. The appeal against dismissal of the claims under sections 44(1)(c), 44(1)(d), 44(1)(e), 100(1)(c), 100(1)(d) and 100(1)(e) of the Employment Rights Act 1996 was dismissed. The appeal concerning disability was allowed. The disability discrimination and constructive dismissal issues were remitted to the same Employment Tribunal.

2. For sections 44(1)(c) and 100(1)(c), it was sufficient that a safety representative or committee covered the employee’s workplace. The provision did not require the representative or committee physically to be based there. That construction avoided the impractical result that a large employer needed a separate representative or committee at every small site. The Tribunal was entitled to find that it was reasonably practicable for the claimant to use the available health-and-safety channels.

3. The Tribunal was entitled to find that the claimant lacked a reasonable belief in circumstances of danger that were serious and imminent for sections 44(1)(d), 44(1)(e), 100(1)(d) and 100(1)(e). The relevant inquiry was the claimant’s reasonable belief when he refused to return. The Tribunal permissibly weighed the contemporaneous guidance, the respondent’s protective measures, the claimant’s fixed view about social distancing, and his failure to seek further occupational-health advice. Its conclusion was neither perverse nor founded on an excessive duty of inquiry.

4. The disability finding could not stand. The Tribunal had found, for the health-and-safety provisions, that the claimant reasonably believed work-related circumstances could be harmful to health. It then held, without sufficient explanation, that his refusal to return resulted from an unreasonable belief rather than his impairment. Failure to establish a reasonable belief in serious and imminent danger did not itself prevent the impairment from causing a substantial adverse effect. On remission, the Tribunal must apply Da Silva Prima to decide whether the causal chain was broken, then consider the long-term condition and, if necessary, the discrimination claims.

5. The constructive dismissal finding was also set aside because a successful remitted disability claim could affect it. The Tribunal may further reconsider alternative work and withholding pay if relevant.

• Employment Appeal Tribunal: Allowed the appeal concerning disability and consequential constructive dismissal issues, and remitted them to the same Employment Tribunal. Dismissed the appeal on the health-and-safety claims under the Employment Rights Act 1996.
• Employment Tribunal: On 7 February 2022, dismissed all claims, including health-and-safety detriment and dismissal, constructive dismissal, disability discrimination and reasonable adjustments.