A driving examiner with kidney disease who refused to return to work because of Covid-related safety worries will have his constructive dismissal claim reheard by an employment tribunal, but was not subjected to a detriment by his employer, the Employment Appeal Tribunal has ruled.
In November 2018, Mr Miles, a driving examiner who worked for the Driver and Vehicle Standards Agency (DVSA) driving test centre in Pontefract, West Yorkshire, was told by his GP that he had stage-four chronic kidney disease (CKD). This diagnosis implied he had severely reduced kidney function and should plan for kidney failure.
When the Covid-19 pandemic began, Miles raised concerns about his health with his employer. His manager instructed him to stop working on 17 March 2020, shortly before the first national lockdown. The following day, all non-critical driving tests ceased and Miles and other driving examiners were furloughed.
Covid-related tribunals
Worker who claimed workplace posed ‘serious and imminent’ Covid danger loses appeal
Cleaner who attended work with Covid-19 was unfairly dismissed
Porter who lost pay while awaiting result of wife’s Covid test wins claim
In June 2020, Miles’ manager, Mr Mitchell, discussed a proposed return to work with him. Miles said he fell into the clinically vulnerable category and was worried about catching Covid-19 at work.
Mitchell told him that clinically vulnerable workers would be expected to return in line with government guidance when driving tests recommenced and that additional health and safety measures would be in place.
Driving tests recommenced a month later and all examiners, apart from those who were ‘clinically extremely vulnerable’ were told to return to work. Miles’ health condition did not fall into this category.
Miles raised concerns about being able to comply with social distancing guidelines in the car. He spoke to his GP who advised him to make an appointment with the DVSA’s occupational health department. He did not do so.
Miles’ union rep contacted Mitchell and asked that he be put on special leave on full pay until “the Covid situation improved”. Mitchell responded by stating that the decision for Miles to return adhered to government guidelines and asked if any other adjustments might benefit the claimant. Miles was also offered an opportunity to take annual or unpaid leave if he chose not to return immediately.
The claimant said he would not return to work and felt no adjustments would resolve his concerns. He resigned in August 2020.
It was not until employment tribunal proceedings began that Miles discovered he had been misdiagnosed. He in fact had stage-two CKD, a much milder diagnosis that can be managed by controlling his blood pressure and other risk factors.
Employment tribunal claim
Miles brought a claim for disability discrimination, failure to make reasonable adjustments and unfair dismissal.
An employment tribunal dismissed his claims. It said he could not claim detriment or dismissal for highlighting circumstances which he reasonably believed would be harmful to his health and safety because, under the Equality Act 2010, this type of claim can only be brought where there is no health and safety representative or safety committee at his place of work. There was a health and safety rep and committee at the Pontefract driving test centre.
The tribunal also found Miles did not have a reasonable belief that returning to work would pose serious and imminent danger to himself, and said he was not disabled.
Miles challenged the tribunal’s judgment before the Employment Appeal Tribunal, which agreed his claim for detriment and/or dismissal for refusing to return to work had failed.
However, it also found the tribunal had applied the wrong test for determining disability. It directed that Miles’ claims for constructive dismissal and disability discrimination be heard by the employment tribunal again.
Judge James Tayler said: “If the claimant is found to be disabled because he had sufficient reason not to return to work as a driving examiner because of the increased risk he faced as someone with CKD by being in a car with those undertaking driving tests, so that his impairment had a substantial adverse effect on his day-to-day activities (subject also to fulfilling the long-term condition) it does not follow that his claims of disability discrimination would necessarily succeed.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
“Even if the treatment of the claimant was found to be because of something arising from disability it would still be open to the respondent to argue that the treatment was a proportionate means of achieving a legitimate aim. It would also be open to the respondent to argue that there were no adjustments that it was reasonable for it to make that would facilitate the claimant’s return to work.”
Health and Safety opportunities on Personnel Today
Browse more health and safety jobs
