Two Interesting Employment Appeal Tribunal Decisions
Alan Kitto
The Employment Appeal Tribunal (EAT) has, within the last few weeks, reached its decision on two separate matters that were each cause for considerable debate at the height of the COVID-19 pandemic.
Section 44 of the Employment Rights Act 1996 protects employees from suffering a detriment as a result of refusing to work in an environment that they reasonably believe places them in serious and imminent danger, or for raising concerns of a similar nature.
A number of people sought to rely on this provision when where their employers were asking them to report for work as normal because their roles couldn't be done from home, despite the employers putting in place safety measures to protect these employees.
In Miles vs. Driver & Vehicle Standards Agency, the EAT heard a claim from a driving examiner who suffered with a chronic kidney condition. Despite the employer having taken advice from the Health and Safety Executive and having acted on this advice, the employee refused to return, was placed on unpaid leave and subsequently resigned and brought a constructive unfair dismissal claim, citing Section 44.
The EAT concluded that his belief in being in immediate and significant danger was not reasonable, considering that his employer had implemented measures to minimise health risks.
The second case, Lovingangels Care Home Ltd v Mhindurwa, the EAT determined that a dismissal on the grounds of redundancy was unfair on the basis that the employer had failed to consider the possibility of furloughing the employee to see if the situation that prompted the redundancy might improve.
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