Mr P Allen-Turner v Mr L Meer T/a Central Auto Repair Services: 1404132/2020
JUDGMENT
[1]The claim for automatic unfair dismissal for a health and safety reason is dismissed.[2]The claim for constructive unfair dismissal is dismissed.[3]The remaining claims fail and are dismissed.REASONS
[1]This is a claim for automatic unfair dismissal for health and safety reasons.[2]The hearing was conducted by the parties attending in person by video conference (VHS). It was held in public in accordance with the tribunal rules. It was conducted in that manner because the parties had consented to such a hearing and it was in accordance with rule 46, the Presidential Guidance on Remote Hearings and Open Justice and it was in accordance with the overriding objective to do so. Issues[3]There was a case management hearing on the 7 September 2021, conducted by Employment Judge Dawson. This fixed the following list of issues, with the agreement of the parties.[1]Unfair Dismissal 1.1. Was the Claimant dismissed? 1.2. The Claimant asserts that he was expressly dismissed or, in the alternative was constructively dismissed. 1.3. The Respondent denies that the Claimant was dismissed and does not seek to advance a fair reason for the dismissal. 1.4. Would the Claimant have been fairly dismissed in any event and/or to what extent and when? 1.5. If the dismissal was unfair, did the Claimant contribute to the dismissal by culpable conduct?[2]Constructive Unfair Dismissal 2.1. The Claimant claims that the Respondent acted in fundamental breach of contract in respect of the implied terms of the contract relating to 2.1.1. Mutual trust and confidence and 2.1.2. Provision of a safe working environment 2.2. The breach was as follows; 2.2.1. The Respondent failed to provide a safe working environment in accordance with the Covid-19 guidelines. 2.3. The Tribunal will need to decide: 2.3.1. Whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the Claimant and the Respondent; and 2.3.2. Whether it had reasonable and proper cause for doing so. 2.3.3. Whether the Respondent failed to provide a safe working environment. 2.3.4. Did the Claimant resign because of the breach? The tribunal will need to decide whether the breach was so serious that the Claimant was entitled to treat the contract as being at an end. 2.3.5. Did the Claimant tarry before resigning and affirm the contract? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation. 2.3.6. In the event that there was a constructive dismissal, was it otherwise fair within the meaning of s.98(4) of the Act?[3]Wrongful Dismissal: notice pay 3.1. What was the Claimant’s notice period? 3.2. Did the Claimant work his notice? 3.3. Was the Claimant paid for that notice period?[4]Health and Safety Claims 4.1. Was the Claimant dismissed? 4.2. What was the reason, or principal reason for the dismissal? 4.3. Was it because in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he (while the danger persisted) refused to return to his place of work, or in circumstances of danger which he reasonably believed to be serious and imminent, he took appropriate steps to protect himself? 4.4. In assessing this, are the criteria in s.100(1)(d) Employment Rights Act 1996 made out? 4.5. Did the Claimant believe there were circumstances of serious and imminent danger? The Claimant says that there was a failure to guidelines which provided a risk of infection with Covid-19. 4.6. Was that belief reasonable? Evidence 4. I had an agreed bundle of documents consisting of 197 pages and an additional statement bundle consisting of 51 pages. By agreement the parties also placed before me a letter from the Respondent’s solicitors to the Claimant’s solicitors of 7 December 2021 and the response letter of 23 December 2021.[5]I took the witness statements as read, save for corrections made by the Claimant to his statement at the commencement of his evidence. I heard evidence from the Claimant. I heard evidence from the Respondent and his witness, Mrs Beccy Hayes.[6]There were oral submissions from both parties and I was referred to the relevant appellate authority of Oudahar v Esporta Group Ltd, [2011] ICR 1406, for health and safety dismissals, together with a recent first-instance decision relating to Covid-19 issues, Preen v Coolink Limited(1) & Mr Richard Mullins(2) 1403451/2020. Facts[7]I considered all the evidence and submissions and found the facts necessary to decide the issues in the case.[8]The Claimant was employed by the Respondent as an auto technician.[9]The Respondent ran a garage, Central Auto Repair Services in Worthing.[10]The Claimant suffers from a virus that attacks the body’s immune system.[11]On Wednesday 11 March 2020, the World Health Organisation (WHO) declared Covid-19 to be a pandemic.[12]On Thursday 12 March 2020, the Prime Minister announced that Covid-19 was a pandemic.[13]On Friday 13 March 2020, the Claimant raised with the Respondent that the WHO had declared Covid-19 to be a pandemic. The Claimant says that this was in the context of raising his concerns his personal health condition and the lack of any protections in place at the garage. The Respondent asserts that the Claimant mentioned this in background of a general conversation about the news and world affairs.[14]In the Claimant’s witness statement dated the 6 January 2022, almost two years later, he says, In March 2020 as the Covid-19 pandemic struck and the Government introduced distancing guidelines and mask wearing I was concerned that the Respondent was not implementing any Covid-19 safety measures. I fall into the vulnerable category so obviously my anguish at the lack of the imposition of any safety measures was alarming to me. I firstly raised these concerns with the Respondent himself on 13 March 2020 and when nothing changed again on 16 March 2020. The only response I received from the Respondent himself was that “I would rather have Covid19 than spend three weeks with Pam” who is the Respondent’s partner. It was quite clear to me that the Respondent was not prepared to provide a safe working environment.[15]The Claimant has not provided me with any Government Guidelines in relation to Covid-19 and in particular related to distancing, mask wearing and safety measures. A number of guidelines related to Covid-19 as well as legislation came into force during the country’s response to the Covid-19 pandemic. However, during the period that I am concerned with, at the start of the pandemic and in particular prior to 20 March 2020, there were no Covid-19 guidelines in force that were applicable to the Respondent’s business, distancing, mask wearing and safety measures, that the Claimant could have been concerned the Respondent was not following.[16]On Monday 16 March 2020 the Prime Minister gave a speech to the nation where he advised the public to work at home where they possibly could. He asked people to stop non-essential contact with others and to stop all unnecessary travel. Pubs, clubs, theatres and other social venues remained open, but people were advised to avoid them.[17]It was not possible for the auto technicians to work from home, and there was no prohibition on the running of the garage.[18]On Thursday 19 March 2020 the Claimant undertook an MOT on his own vehicle. The current MOT did not expire until 24 April 2020.[19]On Friday 20 March 2020, the Claimant attended work as normal. He agreed to work overtime on the following day, Saturday, as was normal. The Claimant was paid his weekly salary on the Friday as normal plus £100 in advance for the working the following day. The Claimant raised no issue about attending to undertake his overtime, having collected his pay for the week and for the overtime the following day.[20]During Friday 20 March 2020, the government announced that entertainment and hospitality businesses were being asked to shut. The advice to work from home, unless the work was essential, was repeated. The Respondent’s garage was not asked to shut, and it was not possible for auto technicians to work from home. There was no requirement or recommendation for mask wearing and no requirement or recommendation for distancing of 2 metres at this time. The government also announced that there would be support for businesses affected.[21]Shortly before midnight on the 20 March 2020, the Claimant phoned the Respondent and said that he was not returning to work. He said that he had intended to leave a message on the Respondent’s phone, but that the Respondent had answered. He denied that he resigned during this conversation but accepted in evidence that he told the Respondent he was not returning to work. He says he told the Respondent that he “…could not put himself at risk anymore and could not work until he provided a safe working environment.” The Respondent does not accept this and states that the Claimant just told him that he was leaving and not coming back. The Respondent’s evidence is that had the Claimant have told him that he was shielding for 12 weeks, then there would not have been any problem with him doing that, but instead the Claimant told him that he was leaving. It was a short conversation lasting no more than a couple of minutes. The Respondent asked the Claimant to repay the £100 paid in advance for working the following day and the cost of the MOT for the Claimant’s car. The Claimant agreed to pay this amount totalling £130.[22]The Claimant did not attend the garage for work on Saturday 21 March 2020.[23]Later on during the 21 March 2020, the Respondent sent the Claimant a message with his bank details and the total to be repaid of £130 for the unworked Saturday overtime and the cost of the MOT.[24]The Respondent replied the same day saying, Good Morning Laurie, I’ve pinged you your £130. I’ll be doing some serious social distancing for the next day or so, then if not ordered to self isolate by our weak government I’ll make my choice as a family. Hopefully you understand my decision and I’m proved to be wrong. I’ll be in touch, take care and good luck over the next couple of weeks or months. Cheers P.[25]The Respondent replies, “You have to do what is best for you..Take care.” The tone of this exchange is amicable, and the Claimant does not raise any of the criticism of the Respondent, which he says was the reason for his refusal to return to work and which occurs in subsequent exchanges. It is also in stark contrast to what the Claimant says was the content of their telephone call the night before, when the Claimant says he said that he would not put himself at risk anymore and would not work until the Respondent provided a safe working environment. In contrast, this message makes no mention of being put at risk by the Respondent and no mention of returning to employment when safety measures have been put in place. This contemporaneous message refers to a decision taken by the Claimant to socially distance completely, and not just in a work context, setting his decision in the context of a global pandemic as opposed to a specific risk at the garage. Additionally, rather than reference any government guidelines that the Claimant says the Respondent should have been following, the Claimant pours scorn on the government’s response, saying, “…if not ordered to self-isolate by our weak government I’ll make my choice as a family…”.[26]On 24 March 2020, the Claimant sent a message to an employee of the Respondent saying, …maybe we can approach the accountant at the same moment and push for some government help…jump ship now mate if I we’re you as things are going to get a lot worse, especially the spread of the disease over the next couple of weeks…just tell him you are taking holiday under instruction from your family.[27]This approach was unsuccessful, and the employee remained in the employment of the Respondent.[28]On 25 March the Respondent sent a message to the Claimant via WhatsApp to arrange payment of outstanding holiday pay and to arrange return of the garage key. The Claimant replied, and as part of that communication said …I then approached you firstly on the 13th March asking what plans would we put in place to protect your work force, to which you didn’t respond…I tried to approach you again to which you replied, I’d rather have Covid-19 than spend weeks with Pan. This made me feel nervous and powerless to make you engage in the gravity of the situation. By Friday 20th the virus was rapidly spreading…but you unfortunately still had closed ears. I can honestly say that I’m not happy with my decision, I’d much rather have a job than worry about keeping a roof over my head and paying bills, but without taking drastic measures at the garage it just wasn’t possible to protect myself.[29]Later in the same conversation the Claimant said, “I wasn’t coming in because I felt exposed due to a suppressed immune system.” He then goes on to ask for the termination of his employment to be paused, saying, “Can’t we just hold fire on all this just for a few days to see what’s happening, the government will help with this.” This message suggests that the Claimant was willing to return to the employment of the Respondent without the safety measures, which he alleges a lack of was the reason for his leaving, being put into place[30]Friday 27 March 2020, the Respondent shut the garage for 7 weeks in response to the Covid-19 pandemic. He was not required to do so by the Covid-19 legislation that was in force at that time and would have been permitted to have remained open. The Respondent paid his employees in full during this period and suffered financial loss as a consequence of his decision to close the garage.[31]On Saturday 28 March 2020 the Claimant emailed the Respondent saying, Going back to the 13th of March you were sat on one customers waiting area seats and I read you a statement from WHO (World Health Organisation) stating they were deeply concerned by both the alarming levels of the spread and severity and by the alarming levels of inaction, this was when Covid-19 characterised as a pandemic, this is also when I first suggested you should be making places to protect your work force which employers legally have to do…your response was lets see what happens, ignoring the amount of people we run into going about normal business but you refused to engage with me or even your son, even leaving me to buy my own hand soap!” Other comments on the 19th, nothing to worry about, flu kills more people, then the most worrying of all you said more than once about rather having Covid-19 then spending weeks with Pam! You’ve showed a total disregard for my welfare as a employer knowing full well I’ve a health condition.[32]The Respondent replied by email later the same day to say that he did not want any more emails about the matter.[33]Subsequently it came to the attention of the Respondent that prior to his resignation the Claimant had deliberately copied the Respondent’s customer database onto a memory stick and removed it from the premises. This is not something which could have occurred by accident. To do this, the Respondent would have to have taken a memory stick to the garage. Then intentionally copied the customer database on the memory stick, before removing it from the premises. The Claimant did not have the permission of the Respondent to do this and there was no lawful reason for him to have done this.[34]The Claimant accepts that in doing this he acted dishonestly. The Claimant has not returned the memory stick with the database to the Respondent and states that he no longer has it, claiming that he mistook it for a Wi-Fi dongle and disposed of it in error.[35]In his signed witness statement to the Tribunal the Claimant states, “…contended that I had a memory stick with the Respondent’s customer database. I had a memory stick of my customers that I had brought to the Respondent’s business.” The Claimant now accepts this was not correct and that he had dishonestly taken the Respondent’s customer database. The only reason that the Claimant would have copied the Respondent’s customer database prior to his resignation is because he ultimately intended to approach the customers to come to a new business he had either joined or set up. Applicable Law[36]For health and safety cases the relevant provisions on dismissal are set out in section 100 of the Employment Rights Act 1996 (“ERA”). The qualifying period usually required for an unfair dismissal claim does not apply (section 108(3) ERA). 100 Health and Safety cases(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that –a. …b. …c. Being an employee at a place where – i. There was no such representation of safety committee, or ii. There was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, He brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,d. In circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, ore. In circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available at the time.(3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them.[37]There is relatively limited appellate authority on these provisions, and none relating to the Covid-19 pandemic. I have been referred to the relevant authority of Oudahar v Esporta Group Ltd, on health and safety cases. This confirms that Employment Tribunals should apply S100(1)(e) in two stages and the approach is set out at paras 25 and 26, 25 First, the tribunal should consider whether the criteria set out in that provision have been met, as a matter of fact. Were there circumstances of danger which the employee reasonably believed to be serious and imminent? Did he take or propose to take appropriate steps to protect himself or other persons from the danger? Or (if the additional words inserted by virtue of Balfour Kilpatrick Ltd v Acheson [3003] IRLR 683 are relevant) did he take appropriate steps to communicate these circumstances to his employer by appropriate means? If these criteria are not satisfied, section 100(1)(e) is not engaged. 26 Secondly, if the criteria are made out, the tribunal should then ask whether the employer’s sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, then the dismissal must be regarded as unfair.[38]This two stage test applies also to the requirements of S100(1)(d), where the employee was left or refused to return to his place of work, as is the claim in this case.[39]The first stage does not depend on whether the employer believes in the presence of danger, but on how the employee honestly and reasonably regards the situation. The factual issue for me to determine, is what did the Claimant reasonably believe on 20 March 2020?[40]Mr Zovidavi for the Respondent, submitted that as the Claimant now accepts that he resigned from his employment in the telephone call of Friday 20 March 2020, there is no dismissal and therefore the claim fails on that admission. However, this ignores the application of section 95(1)(c) ERA, where the employee is deemed to be dismissed when the employee terminates the contract under which he is employed (with or without notice) where he is entitled to do so, by reason of the employer’s conduct. In this case, the Claimant says that there was a breach of the implied term of trust and confidence.Discussion
[41]I do not find as a matter of fact, that the reason for the Claimant’s resignation on 20 March 2020 and subsequent non-attendance to undertake overtime on 21 March 2020, was because of a failure by the Respondent to provide a safe working environment in accordance with the Covid-19 guidelines which provided a risk of infection with Covid-19.[42]The Covid-19 pandemic has presented an unprecedented public health challenge to both the government and the public. As such our understanding of the virus, its effects and the steps required to protect public health have developed rapidly in a relatively short period of time. This has led to both guidelines and legislation changing regularly. Therefore, it is important to root this case at its correct point in the Covid-19 timeline, specifically as to what guidelines and legislation were in force. This is to avoid the danger of reading back into a time at the start of the pandemic, knowledge and guidelines which came into existence and operation only later and in relation to the facts of this case, after Friday 20 March 2020.[43]The case is pleaded in the Claimant’s claim form dated 10 August 2020, at page 16 of the bundle, as follows, 1. The Claimant commenced employment with the Respondent 13th June 2011 and had continuous employment until he was dismissed on 27th March 2020. 2. The Claimant was requested to carry out overtime for the Respondent on 20th March 2020. The Claimant agreed and attended the Respondent’s premises on that date. The Respondent had failed to provide a safe working environment in accordance with the Covid-19 guidelines. The Claimant has underlying health conditions and was not prepared to work when the Respondent was failing to carry out the Covid-19 guidelines. The Claimant accordingly refused to do overtime and left the Respondent’s premises. 3. The Claimant had raised his concerns with the Respondent in relation to the Covid-19 pandemic on 13th March 2020. These concerns were raised again on 16th March 2020. The only response the Claimant received from the Respondent was a response to the effect that “I would rather have Covid-19 than spend three weeks with Pam” (the Respondent’s partner). 4. It was quite clear to the Claimant that the Respondent was not prepared to provide a safe working environment in accordance with the Covid-19 guidelines. The Claimant therefore refused to carry out overtime. 5. The Claimant did telephone the Respondent on the evening of 20th March 2020 to advise the Respondent. The Respondent contends that the Claimant resigned during that telephone call. The Claimant denies having resigned. The Claimant did not hear further from the Respondent until the Claimant received a P45 from the Respondent stating the Claimant’s leaving date was 27th March 2020. The Claimant had no option but to deem receipt of the P45 as the Respondent’s termination of the Claimant’s employment. 6. The Claimant was not subject to any invokement of a procedure allowing the Respondent to dismiss the Claimant and accordingly the Claimant’s dismissal is procedurally and substantively unfair. 7. In the alternative if it is deemed that the Claimant resigned by telephone call on 20th March 2020 then the Claimant claims constructive unfair dismissal against the Respondent because the Respondent failed to provide the Claimant with a safe working environment in breach of the Covid-19 guidelines. 8. … [Emphasis added][44]Despite being dated less than 5 months after the 20 March 2020, the pleadings are incorrect in that the Claimant did not in fact attend on the 20 March 2020, to undertake overtime. This was a normal working day and the Claimant attended work at the garage on Friday 20 March 2020 as part of his normal working week and left at the end of the working day, in the understanding that he would attend to undertake overtime the following day and having been paid in advance for this overtime. However, even allowing for an error in the date, it was not the case as set out in the pleadings that the Claimant attended to undertake his overtime on the Saturday. The Claimant did not attend, instead he called the Respondent on the evening of Friday 20 March 2020 to say that he would not be returning to work.[45]Despite being pleaded on the basis that he did not resign, the Claimant accepted in his evidence that he did in fact resign from employment with the Respondent in the telephone call of 20 March 2020. There being no other interpretation of him informing the Respondent that he was not returning to work. It was not the case that the Claimant said to the Respondent during the call that he was not returning until the workplace was safe with regards to Covid-19. The Claimant accepts that he told the Respondent that he was not coming back at all.[46]Leaving aside the inaccuracy as to the events of the 20 and 21 March 2020, the Claimant in his pleadings sets out on four occasions why he determined that there was a danger that he believed to be serious and imminent. He says this was because there was a failure by the Respondent to follow the Covid19 guidelines and that because of this and due to the Claimant’s underlying health conditions, he refused to carry out the overtime.[47]This is reflected in the agreed list of issues from the Case Management hearing of 7 September 2021, which was agreed by the parties. At para 4.5, it is expressly stated that the Claimant’s case is that the Respondent failed to guidelines, Did the Claimant believe there were circumstances of serious and imminent danger? The Claimant says that there was a failure to provide a safe working environment in accordance with the Covid-19 guidelines which provided a risk of infection with Covid-19. [Emphasis added][48]On 7 December 2021, solicitors for the Respondent wrote to the Claimant’s solicitors asking for details of the exact guidelines that the Respondent had failed to follow.[49]The Claimant’s solicitors responded on 23 December 2021, saying, It is not for the Claimant to advise the Respondent as to the Respondent’s obligations as an employer. These obligations are set out in various acts of parliament and regulations and include the Government’s advice at the time in relation to Covid-19.[50]I have not been provided with a copy of any Covid-19 guidelines, nor any act of parliament nor regulation, that the Claimant says that the Respondent failed to follow. The reason for this is that on 20 March 2020 there were no Covid19 guidelines in force, nor were there any Covid-19 acts of parliament nor regulations, which applied to the Respondent at that time. Therefore, it cannot be the case as the Claimant states that he had a reasonable belief of a serious and imminent danger to his health due to the Covid-19 pandemic, because of a failure by the Respondent to follow the Covid-19 guidelines, as there were on 20 March 2020 no Covid-19 guidelines for the Respondent to follow.[51]A further factor that provides insight into the reasons for the Claimant’s resignation, is his acceptance that prior to his resignation, that without permission, lawful authority, or the knowledge of the Respondent, he copied the Respondent’s entire customer database onto a memory stick and stole the database. Despite requests from the Respondent and his solicitors the Claimant has not returned this memory stick with the database, instead stating that he cannot return it as he disposed of it in error.[52]The Claimant accepted in evidence that this action to take the Respondent’s customer database was dishonest and that it was a mistake. This action was in fact more than a mistake, in that it involved a deliberate decision by the Claimant to copy the database onto a memory stick, which he must have had for this specific purpose and to then take that memory stick and database away from the Respondent’s garage. There can be no other reason as to why the Claimant did this other than it was his intention to take customers from the Respondent following his resignation.[53]Further casting doubt on the credibility of the Claimant’s evidence is that in his signed witness statement to the Tribunal he denies taking the Respondent’s customer database, saying instead that he had a database of his customers only. By his admissions on oath, this was not correct. By contrast, I found the Respondent to be consistent and credible in his evidence to me.[54]There is further support for the Claimant’s actual motive in his message of the 24 March 2020, to another employee of the Respondent, where he advises that employee to “jump ship now”, and that they “…can approach the accountant at the same moment and push for some government help…”. It is clear to me that the Claimant’s intention, having taken the Respondent’s customer database, was to resign and start a new business, approaching other employees of the Respondent to join him.[55]The Claimant states that he raised concerns with the Respondent about the Covid-19 pandemic and the workplace on both 13 and 16 March 2020. The Respondent says that the Claimant did refer to the WHO declaring Covid-19 to be a pandemic on 13 March 2020, but that this was only in the context of them discussing world affairs. I do not believe the Claimant raised concerns with the Respondent about Covid-19 in the context of the garage and his employment. Had the Claimant have done so, then I believe that it is likely that the Respondent would have taken action in response. On Friday 27 March 2020, only a week after the Claimant had resigned, the Respondent shut the garage completely for a period of 7 weeks. At this time, garages were entitled to remain open and there was no requirement on the Respondent to shut the garage. However, the Respondent took this decision in order to protect the health of his employees and their families, as well as his own health. This was only a week after the Claimant says the Respondent was not taking the Covid19 pandemic seriously. The Respondent took this step despite the adverse financial affect this would have on his business. This is not the action of a man who would take no steps to protect his employees as claimed by the Claimant. It is not the actions of a man who would not follow government guidelines on Covid-19. In shutting his garage, he has gone beyond what was required of him at the time. These actions demonstrate, that had the Claimant have raised concerns with the Respondent on the 13 and 16 March 2020 as he alleges, then the Respondent would have taken action to address these concerns. Indeed, the Respondent told me that there would have been no issue with the Claimant taking time off to socially distance himself had this have been requested. However, the Claimant did not raise any concerns about safety procedures for Covid-19 in the garage as he claimed[56]Further, whilst in later messages from the Claimant to the Respondent, there is reference to the Respondent not acting in response to the Covid-19 pandemic, this is not mentioned in the most contemporaneous message sent by the Claimant to the Respondent the following day, Good Morning Laurie, I’ve pinged you your £130. I’ll be doing some serious social distancing for the next day or so, then if not ordered to self isolate by our weak government I’ll make my choice as a family. Hopefully you understand my decision and I’m proved to be wrong. I’ll be in touch, take care and good luck over the next couple of weeks or months. Cheers P.[57]There is no hostility in this message nor reference to the Respondent failing to follow guidelines nor to put safety measures in place. Indeed, the Claimant’s complaint about the Respondent not taking Covid-19 seriously only arises in the messages from the 25 March 2020 onwards, which are after the Claimant has unsuccessfully approached another employee to resign and join him in a new venture, approaching the accountant together to secure government funding for it.Conclusions
[58]Accordingly, I do not find that the reason for the Claimant’s resignation in the telephone call on 20 March 2020 was because he believed that there was a failure by the Respondent to provide a safe working environment.[59]The Claimant has repeatedly stated that the reason for his resignation was because of a failure by the Respondent to provide a safe working environment in accordance with the Covid-19 guidelines. I have not been provided with any Covid-19 guidelines in force on 20 March 2020 and applicable to the Respondent. This is because there were none in force at this early stage of the pandemic. Therefore, the Claimant could not have resigned as he states, because of a failure of the Respondent to follow Covid-19 guidelines.[60]Prior to his resignation the Claimant took the Respondent’s customer database. The Claimant accepts that he acted dishonestly in doing so. The only reason the Claimant would have taken the database, was because he intended that following his resignation he would approach the Respondent’s customers.[61]Following his resignation, the Respondent unsuccessfully approached another employee of the Respondent to resign and approach the accountant together to secure funding from the government.[62]Had the Claimant have approached the Respondent as he said on 13 and 16 March 2020, with his concerns about Covid-19 and safety in the workplace, then I have no doubt that the Respondent would have acted upon this, as he did a week after the Claimant’s resignation, when he closed the garage for 7 weeks. In doing so, he went beyond what he was required to do by government advice and guidelines.[63]In my judgment the real reason for the Claimant’s resignation was that he intended to start or join a business, securing access to government funding and having taken the Respondent’s customer database.[64]Therefore, the Claimant did not have a reasonable belief of serious and imminent danger of infection with Covid-19 due to the Respondent’s failure to guidelines.[65]The Claimant resigned and there was not a fundamental breach of the contract by the Respondent in respect of either the implied terms of mutual trust and confidence or the provision of a safe working environment.[66]For the reasons set out above, the Claimant’s claims are dismissed.