Darrell Miles v Driver and Vehicle Standards Agency

The Employment Appeal Tribunal considered claims arising from an employee with chronic kidney disease who refused to return to work during the Covid-19 pandemic. The panel addressed statutory health and safety protections under sections 44(1)(c), (d) and (e) and section 100(1)(c), (d) and (e) of the Employment Rights Act 1996, and the definition of disability under section 6 of the Equality Act 2010 together with associated discrimination complaints (sections 15 and 21 EQA) and reasonable adjustments.

The court upheld the tribunal's finding that the claimant had reasonably believed there were circumstances connected with his work that were harmful or potentially harmful to health (s.44(1)(c) / s.100(1)(c)) but concluded that the tribunal was entitled to treat the employer as having an appropriate safety representative/committee covering the claimant's place of work. The tribunal's conclusion that the claimant did not reasonably believe there was a serious and imminent danger (s.44(1)(d)/(e) / s.100(1)(d)/(e)) was a conclusion open to it on the evidence.

However, the EAT found an inconsistency in the tribunal's reasoning on disability: the tribunal accepted that the claimant reasonably believed return would be harmful (for s.44(1)(c)) but also concluded in the disability analysis that his refusal to return resulted from an "unreasonable belief" rather than an effect of his impairment. That inconsistency amounted to an error of law and the EAT remitted the disability and related constructive dismissal issues for reconsideration.

Background and procedural posture:

• The claimant was employed as a driving examiner and had been told he had chronic kidney disease. Tests ceased in March 2020 and recommenced in July 2020; the employer required those in the clinically vulnerable category to return. The claimant refused to return and resigned on 10 August 2020.
• The claimant brought claims including health and safety detriment and dismissal under sections 44 and 100 ERA, unfair constructive dismissal (s.94 ERA), discrimination because of something arising in consequence of disability (s.15 Equality Act 2010) and failure to make reasonable adjustments (s.21 Equality Act 2010).
• This is an appeal to the Employment Appeal Tribunal from an employment tribunal judgment dated 7 February 2022 (hearing 18–21 January 2022; in chambers 4 February 2022).

Issues framed by the court:

• Whether the claimant brought to the employer's attention circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety (s.44(1)(c) and s.100(1)(c)).
• Whether the claimant reasonably believed there were circumstances of serious and imminent danger such that he could leave or refuse to return to work (s.44(1)(d)/(e) and s.100(1)(d)/(e)).
• Whether the claimant was disabled within section 6 Equality Act 2010 (the impairment, substantial and long-term adverse effect on day-to-day activities and causation) and, if so, whether discrimination because of something arising in consequence of disability or failure to make reasonable adjustments occurred.
• Whether the tribunal erred in law in its findings and whether any inconsistency in its reasoning required remittal.

Court's reasoning and conclusions:

• On s.44(1)(c)/s.100(1)(c) the EAT agreed with the tribunal that the claimant reasonably believed there were circumstances connected with his work that were harmful or potentially harmful to health, given contemporaneous Government and Public Health England material. However, the tribunal correctly held that those subsections did not apply because there was a recognised health and safety representative/committee covering the claimant's place of work and it was reasonably practicable for the claimant to raise his concerns by those means. The EAT endorsed a purposive interpretation that the representative need not be physically based at the precise site so long as the place of work was covered.
• On s.44(1)(d)/(e)/s.100(1)(d)/(e) the EAT endorsed the tribunal's approach: the correct test asks whether there were circumstances of danger, whether the claimant believed them to be serious and imminent and whether that belief was reasonable. The tribunal examined the steps the employer had taken (standard operating procedures, PPE, ventilation, advice from HSE and PHE) and the claimant's failure to seek occupational health input, and concluded that his belief in a serious and imminent danger was not reasonable. The EAT found no error of law in that conclusion.
• On disability under the Equality Act 2010 the tribunal found the claimant had a physical impairment (stage II CKD) but concluded he was not disabled because it was not established that his non-return to work was caused by the impairment rather than an unreasonable belief. The EAT identified an inconsistency: the tribunal had found a reasonable belief of potentially harmful circumstances for s.44(1)(c) yet characterised the claimant's refusal to return as the result of an unreasonable belief when considering disability causation. The EAT held this inconsistency constituted an error of law and remitted the disability (including long-term requirement), discrimination and constructive dismissal issues for rehearing, directing the tribunal to consider the analysis in Da Silva Prima concerning causation and avoidance strategies.

The EAT therefore upheld the tribunal on the health and safety representative point and on the absence of a reasonable belief in serious and imminent danger, but remitted the disability and related claims for further consideration because of inconsistent reasoning.

Appeal allowed in part and remitted. The EAT upheld the employment tribunal's findings that (a) the claimant reasonably believed there were circumstances connected with his work which were harmful or potentially harmful to health, but that a recognised health and safety representative/committee covered his place of work (so s.44(1)(c)/s.100(1)(c) did not apply), and (b) the claimant did not reasonably believe there was a serious and imminent danger (so s.44(1)(d)/(e)/s.100(1)(d)/(e) failed). However, the EAT found an error of law in the tribunal's disability reasoning because of inconsistent findings about the reason for the claimant's refusal to return; accordingly the disability, discrimination and constructive dismissal issues were remitted for rehearing.

Appeal to the Employment Appeal Tribunal from the Employment Tribunal judgment of Employment Judge D N Jones dated 7 February 2022 (hearing 18–21 January 2022; in chambers 4 February 2022). Decision at EAT: [2023] EAT 62.