Ms M Moore v Ecoscape UK Ltd: 2417563/2020
JUDGMENT
[1]The complaint of automatically unfair dismissal is not well founded and is dismissed. CORRECTED REASONS Introduction[1]The claimant was employed by the respondent from 21 January 2019 until her employment terminated on 2 September 2020. She presented a claim form to the Tribunal on 3 November 2020 following a period of early conciliation from 17 August 2020 until 17 September 2020 and brought a complaint of unfair dismissal arising from section 100 of the Employment Rights Act 1996 (‘ERA’) and which did not require 2 years continuous employment in accordance with section 108 of the ERA.[2]The respondent presented a response resisting the claim.[3]The case was listed for a final hearing on 27 April 2021 and which was listed to be heard by me. However, there was insufficient time to conclude the hearing and I relisted the case for a further day on 27 May 2021 in order that the hearing could be concluded. Despite this additional time, there was insufficient time for an oral judgment to be given and this reserved judgment has been prepared consequently. List of issues[4]Was the Claimant dismissed?a. Did the R act in repudiatory breach of contract, in particular by failing to implement a safe system of work and safe working practices?b. Did the C resign in response to that breach?c. Did the C waive that breach?[5]What was the reason, or principal reason for the dismissal?a. Was it, as the claimant maintains, because in circumstances of danger which she reasonably believed to be serious and imminent and which she could not reasonably have been expected to avert, she (while the danger persisted) refused to return to her place of work, or in circumstances of danger which she reasonably believed to be serious and imminent, she took appropriate steps to protect herself or other persons from the danger?b. In assessing this, are the criteria in s100(1)(d) or (e) made out? i. Were there circumstances of imminent danger? ii. Did the Claimant believe there were circumstances of serious and imminent danger? iii. Was that belief reasonable?[6]If the claimant was automatically unfairly dismissed, is there a chance she would have been fairly dismissed for a fair reason, or if a fair procedure had been followed?[7]Did the claimant contribute to her dismissal by her own conduct, or blameworthy conduct? The Respondent says that the claimant did not do enough to attempt to return to work.[8]Insofar as the C makes out any of the allegations above, to what compensation is she entitled? Evidence used[9]Ms Moore was the only witness who gave evidence in support of her case as claimant.[10]The respondent called Ms Ewa Sikora who was the Business Development Manager and Office Manager, and Mr Gary Farrell who is the managing director. On the first day of the hearing on 27 April 2021, it was only possible to hear the evidence of Ms Moore AND MS SIKORA. Ms Sikora and Mr Farrell’s evidence was not heard until the second day on 27 May 2021 AND FOR REASONS GIVEN BELOW, MS MOORE WAS PERMITTED TO BE RECALLED TO GIVE ADDITIONAL EVIDENCE.[11]Before the second day started, Mr Brochwicz-Lewinski made an application for permission to admit a supplemental statement from Mr Farrell. He confirmed that the statement had been prepared when it became clear to him that the evidence heard so far in the hearing, would require a significant number of supplemental questions by way of examination in chief relating to primarily the ability of the respondent to allow Ms Moore to work from home. Mr Atkinson was permitted some time to consider the statement and to take instructions from Ms Moore. He helpfully agreed to the statement being added and this served to avoid additional supplemental questions of Mr Farrell. However, I agreed that it would be in the interests of justice to allow Mr Atkinson to recall Ms Moore to answer a few specific questions arising from this supplemental statement which could not have anticipated on the first day of the hearing.[12]There was an agreed hearing bundle which was provided in electronic form and was slightly more than 350 pages in length. A few additional pages were provided at the beginning of the hearing, but their introduction was uncontroversial. Findings of fact Introduction[13]The respondent company Ecoscape UK Limited (‘Ecoscape’), was founded by Mr Gary Farrell, who is the sole director of the company. He created the business in 2013 and explained that it was a supplier of ‘environmentally friendly recycled wood plastic composite decking, cladding, fencing and balustrade systems’. At the time when the claimant Ms Moore worked for Ecoscape, the business employed approximately 20 employees.[14]Ecoscape appeared to work from a warehouse site with employees who worked in the physical shipping of the products to customers. There was also a separate office, where Ms Moore worked with Ms Sikora and occasionally other office based employees. It was open plan, but with a separate office where Mr Farrell worked. Prior to the Covid 19 pandemic, all of the office staff worked at the Ecoscape premises[15]Ms Moore started working for Ecoscape from 21 January 2019. Her work involved organizing sales and administration support in the office. The start of the Covid 19 pandemic[16]On 23 March 2020, the Prime Minister made an announcement to the public and ordered that there be a national lockdown, which was envisaged would control the spread of Covid 19 among the UK population.[17]Mr Farrell decided that he would have to close the business from 24 March 2020 and looked to furlough Ecoscape’s staff, although he accepted that at that time, he was not clear as to how the lockdown would work. He informed Ecoscape’s employee by WhatsApp message on 23 March 2020, but explained that some employees, including Ms Moore would need to attend the office on 24 March 2020 ‘to tie up loose ends’.[18]Ms Moore replied to this message on 23 March 2020 and informed him that she was uncomfortable coming into work given the situation regarding Covid 19 and Mr Farrell said that this was fine. It was an understandable reaction and the situation nationally at this time was uncertain and people were naturally frightened. Furlough[19]The government had announced the introduction of the Coronavirus Job Retention Scheme (‘CJRS’) and Mr Farrell decided on 26 March 2020 that he would furlough almost all of Ecoscape’s employees including Ms Moore. She was sent an email by Ms Sarah Gledhill who was Ecoscape’s accountant on 26 March 2020 informing her of the intention to furlough her and its implications in relation to work and pay. Ms Moore acknowledged the email on the same day and gave her consent to being furloughed.[20]However ultimately, Ms Sikora was not furloughed because she was still making calls to customers and suppliers, so that they knew what Ecoscape was doing. This was a necessary step to ensure that the impact that lockdown had on the supply chain was ameliorated as far as possible.[21]Ms Sikora confirmed that she tied up these ‘loose ends’, by working from home. She described these duties as being ‘limited’ and amounted to advising customers by phone or email of the position concerning their orders. I accept that while Ms Sikora was working from home during this time, she was not fulfilling all of the duties which were carried out at Ecoscape’s office and that her work could perhaps be described as a ‘damage limitation exercise’ and was no doubt something which was being repeated by businesses across the country at that time. The reopening of the Ecoscape business[22]Mr Farrell quickly noticed that businesses involved with construction, including gardening and building, and some of which were in competition with Ecoscape, were open. This was permitted by the recently introduced government rules concerning lockdown. Not surprisingly, Mr Farrell decided that Ecoscape should reopen, once certain steps were taken in order that the workplace complied with the government guidance in place.[23]The hearing bundle included Ecoscape’s coronavirus policy which was implemented on 23 March 2020, a risk assessment dealing with social distancing, personal protective equipment (‘PPE’), staggered start and finish times, hand washing, cleaning and training.[24]It was not unreasonable for the business to reopen at this point as there was no suggestion that the reopening was contrary to the government lockdown at that point. Naturally, employer’s were encouraged to allow staff to work from home were possible and if not, ensure that the necessary protective measures and social distancing were maintained. Ms Moore’s reaction to Ecoscape’s reopening[25]Ms Moore was contacted by Ms Sikora of the reopening date by WhatsApp on 25 March 2020. In her replies, Ms Moore was very clear in her view that reopening was ‘selfish and irresponsible’ and ‘…people don’t understand the way this thing can spread’.[26]A further message from Ms Sikora to Ms Moore was sent on Sunday 12 April 2020 and informed her: ‘Gary decided to open again on Tuesday and operate as normal, but with limited staff and no cash transactions. I am going back in is [sic] the yard staff…I will keep you updated if Gary decides we need the team back w/c 20th. He is also going to send us a questionnaire on how we self-isolate…’ Ms Moore acknowledged the email but did not express any clear opinion at this stage and asked to be informed of how things developed.[27]The business reopened on 14 April 2020 and during the morning, Ms Sikora sent Ms Moore a further WhatsApp message at 11:28: ‘Very busy at work – I have taken 15 orders this morning – need one person back, there’s a bit of flexibility between you and Nicole, wanted to check with you first. What’s your position?’ Ms Moore replied shortly afterwards that ‘…I don’t really feel comfortable about coming back in so by all means ask Nicole…’. Ms Sikora did not take any issue about this reply, but warned Ms Moore that Mr Farrell would be asking all employees back ‘shortly’.[28]As the week progressed, Ms Sikora approached Ms Moore again and sent a further WhatsApp message on Friday 17 April 2020 at 11:49 and sent her the following message: ‘…Gary asked to confirm with you that we’d like you to return to work on Monday and resume normal working hours. That means as of Monday you are no longer furloughed. We will have to include a Saturday too as there is only two of us alternating. Safety measures are put in place – masks, anti bac gel provided and no customers entering the office. We are obviously sat 2m apart from one another too. Please let me know if there is any questions or you can call us if you want to discuss…’ Ms Moore replied at 15:00 and her reply was not positive: ‘…I’m struggling with coming back into the office. I appreciate Gary has given us mask etc it’s just other people I don’t trust to be careful as I have been over the last 4 weeks, it only takes 1 person to have it and not show symptoms then we all could potentially end up with it considering we all share a toilet and a canteen I can’t see how it can be made to be completely risk free. I’ve also got to consider Lozs health and well-being I would never forgive myself if I brought it home. Is there any way we can make it so I can work from home. I don’t have a problem working I welcome something to do I just have a concerns [sic] being in the workplace in a situation I can’t control. I know everyone has their own views on the current situation and it’s not my intention to cause any issues but I feel it’s important to be honest about how I’m feeling’.[29]Ms Gledhill wrote to Ms Moore on 17 April 2020 that furlough was ending. Her letter included the following comments: ‘We think that we can you back to work as normal on Monday 20th April 2020 and will expect you to return to work immediately unless agreed otherwise. We have assessed that the work that you undertake will not involve you being within a 2 metre distance of anybody, and therefore you can work safely within the guidelines set by the government. We would encourage you to follow the guidelines for hand-washing. Posters will be displayed around the work place. If you have any concerns please speak with Ewa [Sikora] or Gary [Farrell] immediately.’[30]Ms Sikora spoke with Mr Farrell and informed Ms Moore that he would contact her directly. He sent her a WhatsApp message in which he attempted to reassure Ms Moore that it would be safe to return to work. He explained that government guidelines permitted their industry to reopen, that competitors were open, customers wanted to use Ecoscape and the need to ‘…keep the business going’. He stressed an increase in hygiene with the provision of hand sanitizer, masks, social distancing and not allowing customers on the premises. He did said that he could not accept Ms Moore’s request to work from home because ‘[w]e can’t have one rule for one and another rule for others. It’s simply not fair among other staff members. If you had an underlying health issues we would address this differently’. He concluded with the following proposal: ‘If you still feel uncomfortable after the procedures we have put in place. We will allow you to take time off as holiday or unpaid leave (we didn’t have to offer this but if you feel so unsafe the option is there).’[31]Ms Moore accepted this proposal and informed Mr Farrell that she would cancel 5 days previously booked holiday and would use those for the absence, with the remainder being unpaid leave. She concluded in her message accepting Mr Farrell’s offer by stating that ’…I think I will feel better once the cases have levelled off in our area’. This reply suggested to me that Ms Moore did plan to return to the workplace in the relatively near future, once the level of Covid 19 cases in the local area reduced. Ms Moore was not required to shield by the NHS at this time due to underlying health issues applying to her or to close family members. Not surprisingly, given the evolving circumstances and the exceptional situation that employers and employees had been placed in by Covid 19, no immediate steps were taken about Ms Moore’s concerns regarding a return to the workplace. The respondent’s attempts to get the claimant to return to work in May 2020[32]Mr Farrell confirmed that all of the Ecoscape employees had returned to work by early May 2020. He sent a WhatsApp message to Ms Moore on 4 May 2020 and by this time she would have been taking unpaid leave. Not surprisingly, Ecoscape was enjoying the boom which was taking place at the time with home improvements being made during lockdown and he informed her that they were very busy. Indeed, they had become so busy that they had taken another person on to work in the office. He told Ms Moore that: ‘When you feel comfortable in coming back to work can you try and provide 1-2 weeks notice so I can make arrangements.’. I found that the implications of this message were that temporary office worker would need to be given notice to leave if Ms Moore wanted to return to work and it was clear that she remained employed by Ecoscape at this time. Ms Moore acknowledged this message and did not raise any concerns, nor indicate when she planned to return to work.[33]By 12 May 2020, the government was reporting a falling number of Covid infections and Mr Farrell messaged Ms Moore once again. He asked if she would come back to work on Thursday 14 May 2020. He followed up this message with an email and he attempted to provide reassurance of the measures which had been put in place in the workplace. In particular, he referred to a new workstation distanced from her colleagues by 2 metres, that she would have access to her own stationary, additional hygiene measures were provided including hand sanitizer being available.[34]Ms Moore replied on 12 May 2020 and explained that she had read the government’s guidance published on 11 May 2020. She remained with ‘a high level of anxiety surrounding returning to work within the shared office and how this is a safe environment’. She also referred to HSE guidance and the government guidance that businesses should ‘…make every reasonable effort to enable working from home as a first option.’ She asked Mr Farrell to confirm what efforts had been made by Ecoscape in respect of working from home ‘…as a first option?’ No reply was received from Ecoscape by the morning of 14 May 2020 and at 6:59, Ms Moore informed the business that she would not return to work that day as requested.[35]Mr Farrell provided a reply at 8:53 and explained why it would not be possible to offer home working. He referred to: - ‘Taking data protection into consideration payments cannot be taken safely - Deliveries cannot be organized and scheduled efficiently - Vital communications with other staff members would not be possible - Servicing incoming calls which is a vast proportion of your job is not possible - Discussing/altering quotations with customers calling the office would be made impossible - Printing off and working off architectural plans in A3 wouldn’t be possible - Using systems like Palletways, Tuffnells etc. is not possible remotely.’ He referred to the fairness to staff again and the risk assessment which had been completed and that he felt the ‘working environment is as safe as it can be and all other members of staff are back in the office’.[36]Ms Moore remained anxious about Covid 19 and the following day on 15 May 2020, sent an email to say that she would not be returning to work due to the previous concerns that she had raised. Mr Farrell tried to call her and texted her asking for Ms Moore to call into work. In the absence of any reply, he sent an email at 5:36pm referring to her ‘unauthorised absence’. The usual reassurances which had previously been given, were restated and an explanation was sought from Ms Moore as to what worried her and an offer to put extra measures in place was also made. She was finally informed that she must return to work on Monday 18 May 2020 ‘…to avoid disciplinary proceedings’ and if not coming into work, to advise her manager on or before 7am’…as further explained in the handbook provided to you’. By this date, Mr Farrell was no longer prepared to accept the ongoing absence through unpaid leave and required Ms Moore to return to work. Ms Moore on the other hand, was unwilling to return to work unless it was with home working being permitted.[37]Ms Moore sent an email on Monday 18 May 2020 at 6:46am explaining that she would not return to work ‘…due to ongoing health and safety concerns with anxiety re covid 19 as previously stated’. Finally, she said that ‘I am aware that company policy is to call in each morning but at this stage I would not feel comfortable doing so. As a result all further communication to be via email or letter’. It was not entirely clear why Ms Moore made this request and in evidence simply said ‘I didn’t want to phone in’. While it was understandable that she was anxious about returning to work, this response appeared to be less connected with concerns about health and a worry that she would have to enter into a discussion where she would have to answer questions regarding ways in which she could return to work. My finding is that on balance of probabilities, by this date, Ms Moore would not enter into any negotiation concerning her position with Ecoscape and had closed her mind to the possibility of a sensible compromise. This is surprising given the offer made the previous week by Mr Farrell for additional measures to be put in place.[38]Mr Farrell replied that evening and reminded her that her absence was being treated as unauthorized leave. He noted that Ms Moore had not provided an explanation of her concerns regarding returning to work and that Ecoscape would only correspond with her in writing. While Ms Moore had provided a general explanation that she did not feel safe returning to work, there was no precise explanation of what the real issues were and what steps might assist her in returning to work. When put to there her in cross examination that she could have come into the workplace to see the measures put in place for herself, she said that she felt her safety was at risk. She accepted that working from home was the only measure that she would accept so that she would return to work at this point and this was confirmed in a further email that she sent to Mr Farrell on 19 May 2020.[39]While Ms Moore’s decisions by this stage were not supported by any medical recommendations or requirements, I find that she had reached a point were she was understandably very frightened about the risks of Covid. She was also aware that many people were working from home and as an office based employee, she thought it would be easy to allow home working in her case. But her unilateral decision to countermand company policy and not phone in, suggested she had made her mind up and was not willing to engage in any further discussions. I concluded by finding that by this stage, she would not return to work unless she was allowed to work from home and would not tolerate anything short of that measure. Grievance and Ecoscape’s reaction[40]On 19 May 2020, Ms Moore also commenced a grievance against Ecoscape. Essentially, she explained that she was unhappy with her treatment, that Ecoscape were in breach of their health and safety obligations to her and that her request to work from home had been refused despite it being feasible and contrary to government guidelines. She also suggested that she was being punished for things that she said to Ms Sikora at the beginning of lockdown by WhatsApp.[41]Mr Farrell replied by email on 20 May 2020 seeking an explanation as to the health and safety breaches and added ‘…[c]an you please help me find a solution by informing me of the which area you feel is unsafe?’ He restated the reasons which he had given earlier which he felt explained why work could not be done at home and noted that nobody in her job as a sales executive/admin has been able to work from home since Ecoscope opened in 2013. Despite being unhappy with some of the comments which had been made in her emails to Ms Sikora, Mr Farrell said that if he had decided to punish her, he would have commenced a disciplinary process. He concluded by inviting her to a grievance meeting and he also suggested that Ms Moore could see the measures which had been put in place at Ecoscape. Alternatively, he was willing to meet by video and enclosed an invitation letter with the email for 29 May 2020.[42]Ms Moore replied by email on 24 May 2020 and said that she would not feel safe coming into work and requested a meeting by video call. She acknowledged that she was not in a vulnerable group at risk from Covid 19, but mentioned for the first time that she had asthma. She explained that she was not signed off sick from work because ‘…I am ready, able and willing to work from home’. She said that she did not need to attend work to identify that Ecoscape were in breach of health and safety obligations and said that she had not been given an explanation as to all of the reasonable steps taken by her employer to allow her to work from home. Her reply was lengthy and referred to a number of sources of advice, but the thread which ran through her email was an insistence that she be allowed to work from home.[43]The grievance meeting took place as planned on 29 May 2020 and Mr Farrell provided a note of what was discussed in an email sent later that day. Ms Moore was allowed to attend the grievance by video. It was a lengthy note and although not a verbatim minute, covered submissions from Mr Farrell, Ms Moore and Ms Sikora. There was lengthy discussion recorded involving the feasibility of Ms Moore working from home. A number of tasks were identified which were part of her job role, but which Ms Sikora felt were problematic for home working, such as taking payments from customers. While Ms Moore expressed a willingness to take on more of the tasks which might be capable of being carried out of work, such as telephone calls, the concern of management in this small office environment was whether there would be sufficient capacity at busy periods with work ‘carved up’ in this way.[44]It was noted that Ms Moore’s concern appeared to be about the local spikes in Covid 19 at the relevant time. Mention was made of asthma, although Ms Moore seemed somewhat confused as to its seriousness and did not feel it necessary to obtain a note from her doctor concerning this condition. A discussion also took place concerning the provision of a separate office at the workplace for her and even the provision of a separate printer. Mr Farrell was recorded as confirming the numerous measures he had put in place in the workplace concerning personal protection. Mr Farrell promised an outcome decision regarding the grievance by 3 June 2020.[45]A decision email was actually sent on 4 June 2020 and which concluded by stating that, ‘Ecoscape UK cannot – at this moment in time – facitlitate you working from home’. A more detailed explanation was given within the email but in summary there were concerns regarding data protection, additional costs, distractions. The paper heavy workload and the need to adapt a number of processes were identified. While in some respects, the reasons given were unenlightened, I was also aware that as a small business with a relatively small ‘back office’, which involved the supply of ‘building type’ services, home working was more difficult to accommodate than would be the case with a larger and more office-based employer. Ms Moore was reminded of the steps take by her employer in the email, including steps specifically designed to accommodate her concerns. She was also offered the possibility of varying her contract to a part time contract covering evenings and weekends so she could avoid as many other staff as possible. The email provided Ms Moore with a right of appeal.[46]Ms Moore decided to appeal the decision not to uphold her grievance and gave notice of this by email dated 8 June 2020. She stated that she believed she remained in danger of catching Covid 19 at work and that Ecoscape had not been able to explain why she could not work from home. She sent a further email the same day requesting a copy of the risk assessment which had been prepared by Ecoscape and which Ms Moore had not yet seen.[47]Mr Farrell arranged for an independent appeal hearing officer to be appointed from Peninsula Business Services because he had heard the original grievance hearing and as director, was the most senior manager in Ecoscape. This was confirmed in a letter sent to Ms Moore on 15 June 2020.[48]The appeal hearing was heard by Ms Georgina Shepherd on 18 June 2020 and she produced her report on 25 June 2020. The decision was sent to Ms Moore on 26 June 2020. It confirmed that the appeal was heard by video conference and identified all of the relevant documents from the grievance process which had been generated by the parties. It outlined the basis of her appeal which asserted that she believed herself to be in serious imminent danger, she had concerns about the lack of risk assessment, that she could work remotely and this would be consistent with government guidance.[49]Ms Shepherd dealt with each of the grounds of appeal and concluded by dismissing the appeal in its entirety. She recommended that Ms Moore should be provided with a copy of the risk assessment, which Ecoscape had said would be disclosed when she returned to work. Its ongoing nonavailability had clearly been an issue for Ms Moore. Minutes of the appeal hearing were also included as a separate appendix to the appeal decision.[50]I found that talking into account the respondent’s size, it behaved reasonably in how it conducted the grievance. It allowed Ms Moore to participate remotely, had a full hearing and appeal with reasonably detailed notes or minutes and afforded her every opportunity to put her case. My main criticism of the respondent was the way in which it held onto its risk assessment and not surprisingly, Ms Shepherd concluded that it should be provided to Ms Moore without requiring her to return to work. After all, this document may well have served to explain why the respondent felt that appropriate measures had been put in place, although my previous findings would suggest that this would still not have persuaded Ms Moore to return to the workplace. Ms Moore’s sickness absence[51]Ms Moore acknowledged the report, but on 30 June 2020 advised Mr Farrell that the outcome had left her stressed and she needed to speak with her GP. He reminded her in an email sent the same day that she was expected back in work the next day and her message ‘leaves the entire team in a very difficult position’. Ms Moore was provided with a fit note by her GP on 1 July 2020 and was signed off with stress-related problems and anxiety until 15 July 2020. This was extended until 29 July 2020 and then again, to 5 August 2020.[52]In the meantime, Ms Moore discovered that she was not receiving SSP. Ms Gledhill explained in her email which she sent to Ms Moore on 31 July 2020 that to qualify for SSP payable by Ecoscape, she had been paid £120 average weekly pay to 1 July 2020. Due to her unpaid absence from work since she refused to return to work, she was unable to qualify, and she needed to apply to Jobcentre plus instead. This was an inevitable consequence of the impasse reached between employer and employee, with no decision being made regarding her continued employment, but her refusal to return to work meaning that she would not receive pay once she had exhausted her holiday entitlement. Her sickness postdated this period and any claim for SSP would be based upon her immediate historic period of pay, which was nil due to her nonattendance at work because of her concerns regarding Covid rather than ill health absence. Resignation[53]On 5 August 2020, Ms Moore sent a letter to Mr Farrell giving notice of her resignation in response to a breach of contract by Ecoscape, ‘…being the non-payment of wages coupled with the rejection of my grievance which has been a breach of the implied term of trust and confidence with the last straw being the threat of disciplinary action.’ She went on to say ‘I am providing you with notice of 4 weeks and my last day of employment will therefore be 2nd September 2020’. She asked to be placed on furlough during this notice period.[54]Mr Farrell replied on 6 August 2020 and accepted her resignation and her notice period. He disputed the reasons given for the resignation and explained that he could not re-furlough Ms Moore because there was work available for her to do. Her effective date of termination was 2 September 2020 as agreed. The Law[55]An employee is excluded from the right to bring a complaint of ordinary unfair dismissal in accordance with section 108 of the Employment Rights Act 1996 (“ERA”), if they have not been continuously employed for a period of not less than 2 years ending with the effective date of termination.[56]However, a complaint of automatic unfair dismissal under section 100 ERA is not subject to this requirement.[57]Section 100(1) ERA provides that an employee who is dismissed shall be regarded as unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is among other things, (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, they left (or proposed to leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of their place of work, or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or other persons from the danger. Each of the paragraphs constitutes an independent ground of automatically unfair dismissal.[58]Section 100 also provides: (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 to him at the time. (3) where the reason (or, if more than one, the principal reason) for the dismissal of an employee is 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.[59]Mr Brochwicz-Lewinski referred me to a recent judgment in the Employment Tribunal in the case of Mr D Rodgers v Leeds Laser Cutting Limited (Case No: 1803829/2020). Although he acknowledged that as a first-tier authority this was not a decision which might be binding upon me, he explained that it helpfully referred to the legal principles which should be applied when determining a case involving a complaint of automatic unfair dismissal contrary to section 100 ERA. This was the basis upon which I referred to this case and I did not seek to compare the factual background in that case, with the facts in the case which I had to decide. Discussion Did the claimant reasonably believe there were circumstances of serious and imminent danger?[60]In considering this question, it is necessary to take into account the objective and subjective belief which I find to be present at the material time. This means, did the claimant believe the circumstances were of serious and imminent danger and was that belief objectively reasonable? Each of these points is considered in turn below. Did the claimant believe there were circumstances of serious and imminent danger?[61]Having considered her witness evidence and contemporaneous messages and emails at the material time, I was left with no doubt that Ms Moore had and continues to have significant concerns regarding Covid 19. I have taken into account the developing circumstances and that the position regarding Covid during the Spring and Summer 2020 would have been different to how it is perceived following the roll out of mass vaccinations in the UK. The relevant time in this case predates these welcome developments and fear was particularly heightened during this time.[62]The tone of Ms Moore’s emails clearly displayed to me a significant level of concern and indeed, fear. She struggled to come to terms with Mr Farrell’s understandable decision to reopen Ecoscape with his competitors and other businesses in the building trade reopening before he did.[63]However, this was not a case involving an employee who had been told to shield by the NHS or who had been throughout the lockdown period alluding to specific health concerns. She did ultimately refer to asthma within her grievance, but it appeared to be half hearted and she was reluctant to suggest that it was much more than stress related and relieved using the standard inhalers provided by a GP. Her ultimate reference to her GP was in respect of her stress and anxiety and that appeared to arise from her frustration with the refusal by Ecoscape to allow her to work from home. She did not rely upon GP letters or notes concerning her asthma and additional risks to her arising from Covid 19.[64]Ms Moore’s concerns were recognised by her employer and Ms Farrell did look at what adjustments could be made to the workplace to support a return to work. This included not only the typical measures of restricting access to the office and the usual sanitization processes, but even looking at providing her with a separate office. She was invited to come in and look at the proposed changes to the facilities, but she was reluctant to do so. This suggested to me that her fear was not only significant, but she was anxious that she might have been presented with convincing evidence that a return to work would be feasible with appropriate protective measures put in place.[65]Having considered all the circumstances and the way in which Ms Moore articulated her concerns, her real issues were not with the workplace in any specific way, but a more general fear about being required to leave the home and her perception that danger was everywhere. I also find that with the government’s recommendation that employees should work from home wherever possible, she concluded that she would work from home without properly considering whether it was feasible in her particular job. Was the belief objectively reasonable?[66]Taking into account the reasons already given above, I am not able to accept that Ms Moore’s belief that circumstances existed in her workplace at Ecoscape, was a belief that could be objectively reasonable.[67]I would add again, that I have taken into account the circumstances existing at the material time in Spring and Summer 2020 in relation to Covid.[68]The reopening of Ecoscape was not done without risks being assessed and the need for increased levels of hygiene and social distancing being addressed. It is unfortunate that Mr Farrell did not disclose the risk assessment when asked to do so, although I doubt that it would have made a material difference to Ms Moore’s decision regarding a return to work.[69]Mr Farrell did try to engage with Ms Moore in numerous messages and while there were concerns regarding the original configuration of the office, he did his best to accommodate her concerns and even going so far as to offer her a separate room with her own equipment such as a printer. The staggered shifts was another feature designed to reduce movement within he office at a single moment in time and I must conclude that appropriate measures were put in place, which rendered Ms Moore’s belief not to be objectively reasonable. Could the claimant reasonably have been expected to avert the dangers?[70]Under these circumstances, Ms Moore could have averted the dangers arising from Covid by following the general hygiene guidance provided to all members of the public and the particular measures provided by her employer when returning to work.[71]Sufficient and adequate hygiene measures were in place and Ms Moore could have socially distanced by using the office that she was allocated and attending the shifts on a staggered basis. There is no suggestion that any particular concerns that she might have would not be addressed and apart from her not being provided with her own toilet, reasonable concerns would be addressed. She could have limited her contact with others, been able to social distance and was even offered part time work at different times of day to other employees it this was what she preferred.[72]Ultimately, there was no willingness to visit the workplace, to explore compromises and it remained to Ms Moore, ‘homeworking or nothing’. This was an unreasonable way of averting any danger given the measures being offered by her employer. Did she take appropriate steps to protect herself or other persons from the danger?[73]In addition to the half-hearted references to her asthma, Ms Moore did make some reference to her partner, but ultimately, there was no evidence available to suggest that she was required to shield and not attend work.[74]She refused to return to work and while making reference to local spikes in Covid which undoubtedly existed at the material time in certain areas of the North West, this represented a general fear about the region where she lived rather than the workplace. The workplace was not required to close and Mr Farrell continued to offer the safety measures referred to above.[75]As I have already mentioned, she could have embraced the measures proposed by Mr Farrell and could have taken advantage of the separate office and staggered hours of work to restrict social contact to protect both her and her family. Simply removing herself from work was not an appropriate step. Did she take appropriate steps to communicate these circumstances to her employer by appropriate means?[76]Ms Moore was consistent in explaining that she was frightened from the moment lockdown commenced and this continued once Ecoscape started to reopen.[77]She clearly communicated these concerns via messages to Ms Sikora and more importantly to Mr Farrell. She was also able to raise a grievance and an appeal to the grievance concerning the refusal to work from home and her belief that this was an appropriate safety measure to take in her place.[78]While this might be the case and she has clearly maintained her arguments concerning her belief that her workplace was not safe and she should be permitted to work from home, a point was reached were her employer had taken all reasonable steps to address her concerns. By the time the grievance had been exhausted, she had been afforded a lengthy period of time to consider returning to work and to agree appropriate measures to protect her while at work.[79]Her employer had responded to her communications, reacted patiently and allowed her time to regain her confidence. They engaged with her on a regular basis and it was her decision to unilaterally refuse to engage with Ecoscape on a daily basis. Ultimately, she was left with a belief that it was not safe to return to work, but one which would not take a measured reasonable approach towards adjustments being made to support her returning to work. The resignation[80]There may have been circumstances of danger across the UK during the relevant time in relation to Covid, but this was not particular to Ms Moore’s workplace and if anything, this workplace was from the evidence available, being managed as safely as could reasonably be expected with good hygiene and social distancing and limited human contact.[81]Ms Moore’s decision to resign alluded in her email dated 5 August 2020 to the non-payment of wages, the rejection of my grievance being a breach of the implied term of trust and confidence with the last straw being the threat of disciplinary action.[82]The grievance did relate to safe working practices and her belief that she should work from home. But I am satisfied that the grievance was dealt with properly and followed a reasonable process. She clearly felt frustrated but was unwilling to compromise and acknowledge the steps being offered by her employer. I am satisfied that the way Ecoscape dealt with Ms Moore, was not a repudiatory breach of contract. The nonpayment of wages was understandable given her refusal to return to work and under the circumstances it was something which was done to allow Ms Moore time to reflect, rather than commence a disciplinary process.[83]The decision to resign was prompted because Ms Moore could see that she was running out of options and the conclusion of the grievance indicated that she would not be allowed to work from home. But the conclusions reached by her employer were overall reasonable and included measures and compromises designed to accommodate her concerns. Although she resigned because of the perceived breach, it did not amount to a repudiatory breach which would justify a reasonable employee’s resignation. Conclusion[84]For the reasons given above, the complaint of automatically unfair dismissal is not well founded and must be dismissed. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the[1]The judgment is varied as follows: a) Paragraph 10 of the judgment will be corrected to ensure that order in which the witnesses gave evidence during the hearing is correctly recorded.[2]In all other respects, the claimant’s application for reconsideration is refused.REASONS
[1]This application was made by the claimant on 6 September 2021 and where she requested that I reconsider my judgment dated 17 August 2021.[2]I accepted that the application would be heard and both parties agreed in writing that reconsideration could take place without a hearing being required, with me considering the claimant’s application and the respondent’s reply in chambers.[3]I considered the application on 17 February 2022 and was able to reach a decision which is provided in this judgment and with reasons provided below. Nature of the application[4]The claimant provided a lengthy list of submissions within her application, but they can be summarised under the following broad headings which are considered in turn below.[5]Although the claimant referred to the Tribunal failing to apply the correct law, it actually appeared to the Tribunal that the claimant was essentially making a number of submissions concerning his belief that specific matters were recorded incorrectly or that there was a failure to properly apply the overriding objective under Rule 2 of the Tribunals Rules of Procedure.[6]In this respect, the Tribunal found the application for reconsideration somewhat confusing and it was felt that it would be in the interests of justice to describe them under these broad headings to provide greater clarity. Staggered shifts[7]The claimant asserts it was not correct that she was offered staggered shifts and that the respondent would only allow her to ‘resume normal working hours’ and that it was only first mentioned by the respondent within the grievance decision email on 4 June 2020. However, she also explained in her application that due to the ease with which Covid could be transmitted, she would still have to come into work when others were working and she would have to walk through a crowded main office. She referrd to government guidance advising employers to reduce staffing levels to operate staggered and rotating shifts.[8]She also argued that if she could have worked staggered shifts, this undermined the respondent’s argument that she could not work at home as she would not be passing work to and communicating with her team when in work and this was a part of how she did her job Additional worker[9]The claimant argued that it was incorrect for me to find the additional office worker engaged during her absence would have been dismissed. She states that under cross examination, Mr Farrell could not answer questions regarding this matter. She accepts he said he would have ‘let him go’ and that he had not thought about what he would have done if I had returned to the office.[10]However, she says that he failed to respond to her email dated 12 May 2020 which asked ‘how many office workers are/will be sharing the office simultaneously? She says that he should have informed her then of his intentions with the additional office worker – but says she received no direct response to this question.[11]The claimant argued that while my judgment found that the respondent had offered to allocate her a separate office/room, it was located at the back of the main office, was unventilated and with its only air came from the small, fully occupied small main office which she would have to walk through. She says that the respondent never informed her that she would be given the use of an office in a new large building. She therefore argues that it would be unfair to judge my case based on an office I had no knowledge of until the night before the first hearing.[12]She says that she also mentioned in her grievance appeal statement, that the office offered has no ventilation only a door to the main office and raised this at her appeal meeting with Face2Face. . Claimant’s concern regarding Covid/local cases[13]The claimant argued that while my judgment referred to the claimant expressing concern about ‘local cases’ and that this was not a general fear, it was the high infection levels in the local community that affected her concerns regarding the level of risk in a small enclosed working environment and that she would have been sharing with people who lived in the same local area.[14]The claimant also argued that I was incorrect to find that she shared the office with Miss Sikora and ‘occasionally other office-based employees’, because in addition to Miss Sikora and her, there were 2 other full-time members of staff with various other members of staff frequenting throughout the day performing their roles.[15]The claimant explained that when she was requested not to attend the office by the respondent, she could not have known Miss Sikora was ‘tying up loose ends’ when she informed the claimant in a message conversation in March she was ‘working as usual answering calls, doing quotes and emails’.[16]The point that she appears to make is that it was therefore a reasonable step to suggest working from home, taking into account government guidance and Miss Sikora giving her the impression that working from home was entirely possible.[17]The claimant asserts that I was incorrect in recording that the claimant gave her evidence on the first day of the hearing and the respondent’s witnesses gave their evidence on the second day. She said that supplemental evidence was introduced following Ms Sikora’s evidence that it was possible for the claimant to work from home.[18]The claimant also disputed my findings of fact concerning the feasibility of working from home. She identified a number of matters in her application for reconsideration which explained why working from home would have been feasible and reminded me of The Government and HSE (Health and Safety Executive) guidance stated that every reasonable effort must be made to allow employees to work from home, either in their current role or an alternative role.[19]The claimant reminded me that she was never sent the risk assessment despite requesting it and was never sent the Covid company policy which in it states that it will be sent prior to returning to work. There also appears to have been no efforts to identify staff members who may be/have been at increased risk.[20]The claimant argued that I referred to her making ‘a half-hearted reference to my asthma’ in my judgment. She reminded me that she uses a steroid inhaler twice two times a day and that asthma is a condition which placed her at increased risk. She explained that the ‘advice’ at the time was to stringently social distance even if your asthma was only mild. The claimant added that she was ‘called early for my Covid vaccinations because of this condition as the government were prioritising people at increased risk’. I am also requested by the NHS to have the flu vaccination each year because I have asthma. I believe that the only option I had was to remove myself from the workplace. Communications in writing[21]The claimant noted that she asked for communications to be in writing so as to avoid any further confrontation as she was ‘not comfortable calling in for the same reason’.[22]The claimant noted that while my judgment referred to the government was reporting falling cases at the time she was asked to return to work, the Covid threat level remained at level 4 which meant the threat was severe and that cases were rising exponentially. She added that the government only moved from threat level 4 to 3 on the 19th June 2020 and local cases in the North West remained very high. She also mentioned that there is now some evidence to suggest that the unlocking came to early in the North West. The respondent’s reply[23]Ms Beer on behalf of the respondent dated 11 January 2022, felt that there was nothing within the claimant’s application that would justify a reconsideration of the substance of the judgment and that the only matters that required attention were typographical errors. She did however, take the time to respond to each of the grounds of complaint made by the claimant in her application seeking reconsideration and these are summarized below: Staggered shifts[24]The respondent argued that these were supported by the witness evidence in that the respondent’s risk assessment and the witness evidence of Ms Sikora and Mr Farrell indicated their availability and that in her application for reconsideration, the claimant conceded that they were made available to her on 18 June 2020 in her application before me today.[25]The respondent’s primary submission in relation to this matter is that the claimant was actually not interested in staggered shifts and they referred to paragraph 72 of my judgment which found that the claimant sought ‘homeworking or nothing’. They noted that her resignation took place almost two months following the offer of these shifts and had not attempted to return to the workplace.[26]They added that paragraph 45 of my judgment found that the respondent had also offered flexible hours covering evenings and weekends and this was not challenged by the claimant in cross examination. The additional worker[27]The respondent submits that my findings concerning this matter were consistent with the evidence. This worker had been taken on by the respondent to cover the work which had to be carried out during the claimant’s absence and that Mr Farrell had confirmed that if the claimant had returned and insufficient space was available, he would have been laid off. But again, the respondent questions the relevance of this submission given that the claimant refused to return to work.[28]The respondent was unclear as to the email that the claimant refers to in respect of this matter, but nonetheless, they assert that by the time of the claimant’s resignation, they had informed her repeatedly of the measures taken to ensure her safety in the office. They specifically refer to various messages and emails within the available documentary evidence and additionally, to the grievance meeting. They argue that they asked the claimant to explain what measures would assist her in returning to work on 15 May 2020 and 20 May 2020.[29]They also referred to paragraphs 41 and 64 of my judgment which found that she had been invited to a meeting at work to see what measures had already been put in place, but that she declined to attend.[30]The respondent also noted that paragraph 44 of my judgment, reference was made to her being permitted to use an office restricted to herself if she returned to work. Claimant’s concern regarding Covid and cases locally[31]The respondent simply submitted that I had concluded correctly that the claimant was concerned about returning to work because of her fear of Covid.[32]The respondent simply submits that the claimant misread the judgment and that paragraph 14 correctly refers to ‘other office based employees’ and ‘the office staff’ as being the location where they worked and the description of the workplace identifies the claimant working with Ms Sikora and the occasional other member of staff.[33]The respondent asserts that this matter involves an attempt by the claimant to make further submissions in relation to her case concerning the feasibility of her being allowed to work from home. It is argued by the respondent that I dealt with this matter in my judgment as the purpose of the application is to seek a reconsideration of the judgment and not to rehear and reargue the case.[34]The respondent has referred to counsel’s notes of the hearing and the timings for each witness in terms of the evidence that they gave and notes that my judgment contained an error as to when Ms Sikora gave her witness evidence, (saying day 2 rather than day 1), but that this is not material consideration in terms of the merits of the reconsideration application.[35]The respondent does go on however, to assert that both of their witnesses provided clear evidence as to why the claimant’s job could not be carried out at home and this was reflected within the judgment.[36]The respondent again argues that the claimant in making this submission, is simply seeking to reargue her case concerning the feasibility of working from home and that the purpose of reconsideration cannot be for a party to have a ‘second bite of the cherry’ in relation to their evidence or submissions.[37]In addition to this basic, but fundamental point, the respondent does go on to assert that Ms Sikora was clear in her evidence concerning the feasibility of the claimant being allowed to work from home. In particular, they seek to remind the Tribunal that she had expressed concern about the practical reality of such a step being taken in terms of IT security and the limited amount of the claimant’s job that could be carried out from home.[38]The respondent refers to paragraphs 46, 49 and 50 of judgment and notes that I referred to the risk assessment not being sent to the claimant and therefore, there is no need for this ground to be considered by the Tribunal. They acknowledge other points are raised, but assert that the claimant is again seeking to reargue her case.[39]The respondent submits that my reference to the claimant’s asthma in paragraph 63 of my judgment reflected the evidence given and that while the claimant may have been called in early by her GP for vaccination because of her asthma, this was not a material consideration for the times relevant in this case. Communication in writing[40]The respondent simply argues that this amounts to nothing more than a comment by the claimant and does not constitute a matter to be subject to reconsideration.[41]The respondent argues that this does not amount to a ground for reconsideration and reference is made to paragraph 62 of my judgment which acknowledges the claimant’s genuine fear of this virus. They also note that the judgment reflects the serious context of this case in terms of the Covid pandemic being a significant feature in this case.Discussion
[42]In considering this application, I have considered Rule 70 of the Tribunal’s Rules of Procedure and note that the claimant only has to show that it is ‘in the interests of justice’ for the Tribunal to reconsider its decision.[43]I am satisfied that it is in the interests of justice for the claimant’s application to be allowed and have therefore agreed to reconsider her application. However, this simply allows her to have me give a detailed consideration to the matters that she has raised. It does not mean that her application is likely to be successful and consideration must be given to the grounds of application and the reply from the respondent and of course my re-reading of the judgment. .[44]I also took into account the provisions of Rule 2 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, namely the ‘Overriding objective’ and which provides: ‘The overriding objective of these Rules is to enable the Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes so far as practicable –(a) ensuring that parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and the Tribunal.[45]I did have some concerns that there were questions of proportionality in terms of time being spent reconsidering the grounds raised by the claimant, but was also mindful that this case arose from matters existing during the Covid pandemic and where there was heightened anxiety and fear from both employees and employers concerning the impact of the virus upon them personally, their wider family and of course upon their businesses a livelihoods. I noted that the claimant had made the application for reconsideration without representation and felt that overall, it was in the interests of justice to proceed with the reconsideration as there would be greater prejudice to the claimant, than the respondent if the application was refused. However, it was entirely appropriate for the matter to be dealt with on papers by me in chambers and I am grateful to the parties in agreeing to this approach.[46]I reviewed the list of issues which were agreed by the parties at the beginning of the hearing and which formed the ‘agenda’ of items that I had to consider within my judgment once I had heard the witness evidence and final submissions from the parties. They were not particularly lengthy and focused upon the claimant’s resignation and whether she satisfied the elements for constructive unfair dismissal and whether it could amount to an automatic unfair dismissal contrary to section 100 of the Employment Rights Act 1996 because of concerns regarding her imminent danger.[47]I noted that the findings of fact section of the judgment was sub-divided into a number of sub-paragraphs each dealing with a particular theme of the case and which broadly followed a chronology of events. Staggered shift[48]My judgment explained the impact of Covid upon the respondent at paragraphs 16 to 21, including the introduction of furlough with the respondent raking advantage of the Coronavirus Job Retention Scheme (‘CJRS’). I then went on to explain the general reopening of businesses involved in aspects of construction and that it was reasonable for the respondent to reopen. There was no evidence advanced that the respondent had behaved inappropriately and/or been subject to intervention by the HSE, local authority or other regulatory body.[49]Paragraphs 25 to 31 of the judgment made findings of fact which explained the claimant’s reaction to the reopening of the respondent’s business and then went on to consider how it sought to return the claimant to work at paragraphs 32 to 39. At paragraph 30, I found that the claimant made clear her discomfort about returning to work, even with the proposed protective measures being put in place. What was clear from these findings, was that the claimant was unwilling to propose any solutions to ameliorate her concerns about returning to work and adopted an approach that the only acceptable solution was homeworking. This was summarized within paragraph 39 of the judgment.[50]I acknowledge that the findings of fact did not specifically discuss the question of the staggered shifts, but it was not necessary to do so for the purposes of my consideration of the list of issues. As the respondent notes within its reply to the reconsideration application, paragraph 71 of the judgment where I discussed the case, identified variations to shifts and staggered working and this is sufficient to indicate to the parties that these matters had been heard in evidence and were matters which I could consider as part of my judgment.[51]Ultimately, however, as my judgment makes clear in paragraph 72, the only adjustment which was relevant to the claimant was home working and my findings were that any adjustment which accommodated a return to work at that time, would have been acceptable to the claimant. Additional worker[52]I noted that paragraph 32 of the findings of fact in the judgement made findings concerning the additional worker whom the respondent required to work in the office during the claimant’s absence. I explained within that paragraph that I understood Mr Farrell’s comments to the claimant in May 2020 that she should provide 1 to 2 weeks notice before returning to work, was to allow him to properly give notice to the additional worker. While this assumed that additional work would not be available for him to do, I am nonetheless content with my findings concerning this matter, that it reflects the evidence that was heard and that it is not really a key matter in relation to the list of issues to be considered.[53]This was not a case where the claimant was seeking to argue that a sham redundancy existed and instead involved her resignation because of her concerns regarding health and safety in being asked to return to work during the Covid pandemic.[54]Like the respondent, I was somewhat puzzled about the nature of this particular ground of the claimant’s application for reconsideration. My findings of fact within the judgment gave a clear narrative of the measures adopted by the respondent once it became clear that the claimant did not want to return to work when the business reopened in the Spring of 2020. The respondent’s discussions with the claimant concerning the measures in place primarily take place within paragraphs 32 to 39, but continue into the subsequent section concerning the grievance. I discussed the matter further in paragraph 64, in relation to how the respondent reacted to the claimant’s concerns.[55]I remain of the view that my findings concerning this matter were correct and reflect the genuine attempts made by the respondent to return the claimant to work in such a way as to minimize reasonable anxieties that might exist.[56]I heard evidence that allowed me to make findings of fact within paragraph 44 of the judgment that the claimant was offered a separate office and even a separate printer. This was in addition to the other protective measures provided and/or offered by the respondent. This would enable social distancing to take place and to keep contact with work colleagues to a minimum, while allowing the claimant to do her job.[57]It may not have been raised until the grievance, but it formed part of the dynamic and flexible way in which the respondent tried to return her to the workplace. She remained employed at this point and I am satisfied that this matter was sufficiently dealt with in the judgment. Claimant’s concern regarding Covid/local cases[58]My judgment identified the background concerning Covid within a separate section of the findings of fact in paragraphs 16 to 18 and then the claimant’s reaction within paragraphs 25 to 31 once the respondent reopened its business. Paragraph 31 summarised my recognition of her concerns regarding Covid in her local area and her developing concerns were referred to subsequently in (for example), paragraphs 37 and 39. It was clear that she was anxious about Covid locally and how that impacted upon her return to work. But the judgment correctly identifies those concerns and the discussion section at paragraphs 61 to 65 considers a necessary part of the list of issues, namely ‘Did the claimant believe there were circumstances of serious and imminent danger?’ This section considered the subjective element of the relevant test in a complaint of automatic unfair dismissal on health and safety grounds. The subsequent section at paragraphs 66 to 69 considers the objective element of the test, namely ‘Was the belief objectively reasonable’. Accordingly, this particular matter was properly dealt with in the judgment.[59]I would simply note in relation to this matter that I agree with the respondent’s submission in its reply that paragraph 14 of the judgment within the findings of fact correctly identifies my understanding of the office staffing based upon the evidence that I heard.[60]This matter (and the matter of ‘Evident regarding working from home’ below), were adequately dealt with in my judgment at paragraphs 28, 30, 34, 38 to 39, 40 to 43 and 45 to 46 in relation to findings of fact concerning home working and the claimant’s ongoing request. In the discussion section of the judgment, paragraphs 65, 72 and 77 to 78.[61]I acknowledge that there was an error within the ‘Evidence Used’ section of my judgment and that on day one, the Tribunal only heard evidence from the claimant and Ms Sikora. On day 2, (which took place a month later because insufficient time was available to hear the evidence on initially listed 1 day hearing), I heard the further witness evidence of the claimant and concluded by hearing the remaining respondent witness evidence of Mr Farrell. The claimant’s additional witness evidence arose following the agreement by the claimant that the respondent could introduce an additional statement from Mr Farrell, providing that the claimant could be recalled to give additional evidence dealing with the matters covered by Mr Farrell in his second statement.[62]However, this error was not material to the evidence that I heard and from which I made a handwritten note as each witness was called in turn. In fact, the claimant was able to give additional evidence on day 2. I remain of the view that all witnesses were able to give full and detailed evidence and I felt it was in the interests of justice to adjourn the hearing so that a second hearing day could be provided. This was far more preferable a solution than either restricting the time during which oral evidence could be given so that the hearing could be concluded on day 1, or to postpone the hearing for many months so that a 2 day hearing could listed on consecutive days. As it happened the month gap between day 1 and day 2 did not prejudice either party in terms of the relative ‘value’ and ‘weight’ of each witness’s evidence. In any event, both parties’ representatives provided excellent final submissions and ensured that all of the relevant evidence was drawn to my attention before I commenced my deliberation.[63]These matters were adequately dealt with as part of my judgment and I refer to my comments at paragraph 60 above.[64]As the respondent confirmed in its reply, I dealt with this matter in paragraphs 46, 49 and 50 of the findings of fact in my judgment as well as paragraph 68 as part of my discussion. While I acknowledged, the late disclosure of the risk assessment by Mr Farrell was ‘unfortunate’, I remain of the view that it was not material to the claimant’s failure to return to work and I see no reason to change my decision concerning this particular matter.[65]The claimant had asthma and this was acknowledged within the judgment at paragraph 44 in the findings of fact and paragraphs 63 and 73 of the discussion parts of my judgment.[66]I am able to take judicial notice from my general experience of asthma given its prevalence in society. Asthma is a condition which can result in significant impairments to those who suffer from this condition and can amount to a disability. This is not a case where disability discrimination was brought as a complaint by the claimant. It is potentially a relevant issue nonetheless in cases such as this one which deal with matters of health and safety where the risk involves a virus that can have a significant impact upon the respiratory tract of those who become ‘infected’.[67]Many people who suffer from asthma are able to manage their condition using preventative inhalers on a daily basis and ‘reliever’ inhalers when an asthma attack arises. Some people however, can be particularly vulnerable despite the use of these inhalers but the condition involves a very broad ‘spectrum’ of sufferers and the degree of impairment can vary significantly.[68]In this case, it was clear to me that the claimant had asthma that it contributed to her general anxiety concerning Covid, but based upon my hearing of the evidence before me, there was no evidence that the claimant was required to ‘shield’ during the material time and no medical evidence was available to suggest that her GP did not want her to return to work and the respondent was not aware of a medical condition preventing the claimant’s return to work during May to August 2020.[69]The claimant may well have been ‘fast-tracked’ to receive vaccinations once they became available, but this was a matter for 2021 and not at the material time which formed the consideration of findings of fact in this case. At the material time, my findings of fact and discussion correctly identify that this was not a significant or specific factor in the claimant’s concerns regarding a return to work. Communications in writing[70]While I note that this was raised as a ground of complaint in relation to the application for reconsideration, I do not accept that this matter was not considered properly within the judgment and in particular at paragraph 37 of the findings of fact.[71]This was discussed generally within the judgment and specifically within the discussion when I considered the issues and the extent to which the respondent behaved reasonably in relation to the risks arising from Covid at the material time.Conclusion
[72]I have therefore considered those grounds of complaint raised by the claimant as part of the application for reconsideration. While the claimant is unhappy with the overall outcome of the original judgment, she has not raised anything within the application which persuaded me to vary its decision, other than in relation to the minor slip concerning the order of witness evidence heard.