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    Health and safety law during Covid-19

    Our Partner and employment law expert Lynsey Howes discusses a health and safety claim which arose during the Covid 19 pandemic.

    The Covid pandemic resulted in a little-used piece of legislation raising its head in respect of employees fearing for their health and safety.

    In one case, the Claimant Miles resigned from his employment as a driving examiner after refusing to work during the pandemic.

    He argued he had resigned as a result of being unfairly treated during his employment in the midst of Covid.

    The Claimant suffered with chronic kidney disease and is clinically vulnerable. His employer, the Driver and Vehicle Standards Agency, had taken advice from the Health and Safety Executive and put measures in place to protect the Claimant’s health and safety.

    The Claimant disagreed that these measures were adequate and felt there was still a significant risk to his health and safety as a consequence of his condition.

    He refused to return to work and was placed on unpaid leave and then subsequently resigned.

    The Claimant brought a number of different claims including the health and safety claim. The Employment Appeal Tribunal was asked to decide whether his dismissal was connected to health and safety reasons and therefore unfair.

    The Employment Appeal Tribunal made the following findings: the Claimant was unable for technical legal reasons to bring a claim that he had been dismissed for raising potentially harmful health and safety matters because that claim may only be brought where there is no health and safety representative at the employer.

    In this case there was one. He could not claim a detriment for refusing to return to work where he believed that he was in serious and
    imminent danger.

    The reason was that it was not reasonable for him to hold this belief given the mitigation that had been put in place by his employer and the advice they had taken from the Health and Safety Executive.

    This shows the importance of managing health and safety carefully and taking appropriate advice in order to avoid potential claims.

    The employer in this case was successful.


    20 June, 2023


    Phil Winter

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