Fair dismissal after employee refused to work during COVID pandemic

In Miles v Driver and Vehicle Standards Agency, the EAT confirmed that an employment tribunal was correct to reject the health and safety detriment and dismissal claims of an employee with chronic kidney disease who refused to return to work during the COVID pandemic.

Back in the midst of the pandemic employment lawyers hotly discussed the Health and Safety provisions contained in Ss.44 and 100 ERA 1996. These rarely used provisions were flagged as a possible weapon in an employee’s armoury that might be deployed to protect him from dismissal or other detriment should he refuse to return to work on health and safety grounds.

However, to garner the protection of Ss.44 and 100, the employee must hold a reasonable belief that his health will be in serious and imminent danger if he remains at work or if he returns to work. In the above case, the EAT agreed that the employee (a driving test examiner) did not hold such a belief. He had been deemed ‘clinically vulnerable’ with kidney disease but not ‘clinically extremely vulnerable’. Moreover, the tribunal had properly analysed the steps that the employer had taken to minimise risks.