Abraham Goldstein v Marie-Pierre Herve

Section 44(1)(c) of the Employment Rights Act 1996 protects an employee who raises, by reasonable means, health and safety concerns connected with work. Those circumstances may include travel to and from work; the provision does not impose a duty on employers to assess every commute.

Under section 44(1)(d), the perceived serious and imminent danger must relate to the workplace, though it need not be exclusive to it. Section 44(1)(e) is not so limited. A reasonable belief may be mistaken. Whether the statutory conditions and a repudiatory breach of trust and confidence are established are fact-sensitive questions for the tribunal.

An employer’s unreasonable insistence on workplace attendance during lockdown, for convenience rather than necessity, may breach the implied term of trust and confidence and cause an automatically unfair constructive dismissal where it is prompted by a protected refusal to return to work.

The claimant was employed as a personal assistant and worked partly at the respondent’s home. During the coronavirus pandemic she raised concerns about travelling by public transport and attending that workplace. After the second national lockdown was announced, she said that she would work remotely rather than return to the respondent’s home.

The London Central Employment Tribunal upheld claims of health and safety detriment under section 44, constructive unfair dismissal, and automatic unfair dismissal under section 100(1)(d) of the Employment Rights Act 1996. It found that the respondent’s insistence on attendance during lockdown was unnecessary and amounted to a repudiatory breach of the implied term of trust and confidence.

The respondent appealed only the findings under the health and safety protections. The central issues were whether the claimant’s concerns and refusal fell within sections 44 and 100, and whether the tribunal had permissibly found constructive and automatic unfair dismissal.

1. Appeal dismissed. The Employment Tribunal was entitled to uphold the health and safety detriment and automatic unfair dismissal claims.

2. The claimant’s concerns about public-transport travel to the respondent’s home and being physically present there were circumstances connected with her work for section 44(1)(c) of the Employment Rights Act 1996. The provision protects the raising of such concerns, rather than imposing liability on an employer for the danger itself. Travel to and from work can be sufficiently connected with work; Rodgers did not confine section 44(1)(c) to workplace circumstances.

3. The tribunal had clearly found that the claimant’s email of 4 November 2020 was a refusal to return to her workplace after the second lockdown began. It was entitled to find that she reasonably believed that workplace circumstances created a serious and imminent danger. The relevant danger included inadequate distancing and mask-wearing at the workplace, as well as travel risks. It was not defeated because coronavirus risks also existed outside work.

4. The tribunal was also entitled to treat refusal to return as an appropriate protective step under section 44(1)(e). The claimant’s earlier willingness to attend on a limited basis did not undermine the later, factually distinct refusal during lockdown.

5. The tribunal permissibly found a repudiatory breach of the implied term of trust and confidence. The respondent’s reliance on guidance concerning work in other people’s homes was unreasonable because attendance was not necessary: most duties could be done remotely. Its conclusion also rested on his insistence on attendance to avoid moderate inconvenience, lack of flexibility and disrespectful treatment of a long-serving employee.

6. The breach was prompted by the claimant’s protected refusal to return to work in circumstances within section 100(1)(d). The constructive dismissal was therefore automatically unfair. No error of law, inadequate reasoning or perversity was shown.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 35.
• London Central Employment Tribunal: By a judgment sent on 14 November 2022, upheld health and safety detriment claims, constructive unfair dismissal and automatic unfair dismissal. The Employment Appeal Tribunal upheld those conclusions.