Abraham Goldstein v Marie-Pierre Herve

Key legal principles: The protections in sections 44 and 100 Employment Rights Act 1996 cover a range of health and safety situations: (a) bringing to an employer’s attention circumstances connected with work which are (reasonably believed to be) harmful or potentially harmful to health and safety (s.44(1)(c)); (b) leaving or refusing to return to the workplace where the employee reasonably believes there is a serious and imminent danger that they cannot reasonably avert (s.44(1)(d)); and (c) taking appropriate steps to protect against such danger (s.44(1)(e)). The implied term of mutual trust and confidence can be repudiated by unreasonable insistence on attendance in circumstances that demonstrate lack of empathy and disproportionate prioritisation of convenience over health and safety.

Material grounds for the decision: The Employment Tribunal was entitled to find that the claimant had raised health and safety concerns by reasonable means about commuting and attending the respondent’s home, that she reasonably believed there were serious and imminent dangers once the November 2020 lockdown began, and that her email of 4 November 2020 amounted to a refusal to return after 5 November 2020. The Tribunal permissibly concluded the respondent’s reliance on the government guidance he cited was inapt and unreasonable in the circumstances, that his conduct breached the implied term of trust and confidence, and that the claimant was constructively and automatically unfairly dismissed under section 100(1)(d) ERA. Consequently the appeal was dismissed.

The claimant was a long-serving personal assistant who ordinarily worked at the respondent’s family home (in a sectioned office area). During the first national lockdown in March 2020 she worked remotely and thereafter attended on an ad hoc basis; approximately 15% of her duties required physical presence. In late September 2020 she asked to work from home save for attending once a month, citing government guidance and risks from travelling by London Underground and the respondent’s household not consistently wearing masks. The respondent proposed more frequent attendance and, after rising case numbers and a second lockdown announced to begin midnight on 5 November 2020, the claimant emailed on 4 November that she would not wish to act outside the new lockdown rules and would therefore attend on 5 November but thereafter work from home. On 5 November the respondent emailed relying on guidance about working in other people’s homes and insisting on continued attendance. The claimant was signed off sick on 11 November and resigned by letter of 12 November citing stress and anxiety caused by being pressured to attend during lockdown and lacking a risk assessment or adequate protections.

The claimant brought claims before the Employment Tribunal for protected disclosure detriment, health and safety detriment under section 44 ERA, constructive dismissal and unfair dismissal including automatic unfair dismissal under section 100 ERA. The Tribunal upheld protected disclosure detriment claims (unchallenged on appeal) and upheld the health and safety detriment and automatic unfair dismissal findings against the respondent.

Issues before the Employment Appeal Tribunal:

• Whether the Employment Tribunal correctly held that the claimant’s complaints and refusal to return fell within the protections of sections 44(1)(c), (d) and (e) ERA (including whether travel to and from work can be "connected with" work for s.44(1)(c)).
• Whether the Tribunal was entitled to find the claimant reasonably believed there was a serious and imminent danger and that her refusal to return after 5 November was an appropriate step.
• Whether the respondent’s reliance on government guidance and his insistence on attendance could be a breach of the implied term of mutual trust and confidence giving rise to constructive and automatically unfair dismissal.

Court’s reasoning and conclusions: The EAT held the Tribunal permissibly interpreted and applied sections 44 and 100. It accepted a purposive reading of "connected with" in s.44(1)(c) so that commuting risks may be covered when raised by reasonable means. The Tribunal’s factual findings — that the claimant reasonably believed there were serious and imminent dangers at and connected with her workplace, that she clearly refused to return after 5 November 2020, and that the respondent’s reliance on the particular government guidance was inapt — were open to it on the evidence. The Tribunal was also entitled to find the respondent’s conduct (insistence on attendance, lack of consultation, lack of empathy and suggestion that pay might not be protected) was likely to destroy trust and confidence and was without reasonable and proper cause. The EAT therefore dismissed the respondent’s appeal against the Tribunal’s health and safety and automatic unfair dismissal conclusions.

Appeal dismissed. The Employment Appeal Tribunal held that the Employment Tribunal had been entitled to find that the claimant had raised circumstances connected with her work which she reasonably believed were harmful or potentially harmful to health and safety (s.44(1)(c)), that she reasonably believed there were serious and imminent dangers and refused to return after 5 November 2020 (s.44(1)(d)) and that the refusal and associated steps were appropriate (s.44(1)(e)). The Tribunal’s factual findings that the respondent’s reliance on the government guidance was inapt and that his insistence on attendance breached the implied term of trust and confidence were permissible, giving rise to constructive dismissal and an automatically unfair dismissal under s.100(1)(d) ERA.

Appeal from the decision of the London Central Employment Tribunal (Employment Judge Joffe, with lay members Ms Venner and Ms Brayson) following a hearing on 3–7 October 2022; Tribunal judgment sent 14 November 2022. Appeal determined by the Employment Appeal Tribunal, judgment handed down 14 March 2024 ([2024] EAT 35).