EAT decision affirms protections for employees in health and safety cases under ERA

Citation: [2024] EAT 35
Judgment on

Introduction

The Employment Appeal Tribunal (EAT) decision in the case of Abraham Goldstein v Marie-Pierre Herve [2024] EAT 35 presents key topics relating to employment law, specifically concerning the protections afforded to employees under the Employment Rights Act 1996 (ERA) in the context of health and safety concerns expressed during the coronavirus pandemic. The EAT decision offers insight into the construction and application of sections 44 and 100 ERA, the implied duty of trust and confidence between employers and employees, and the concept of automatic unfair dismissal in health and safety cases.

Key Facts

The claimant, Marie-Pierre Herve, raised concerns about attending her workplace, which was also her employer’s home, during the coronavirus pandemic, citing risks posed to her health and safety during her commute and while being at the workplace. Upon a second lockdown, she refused to return to the workplace, as stated in her email of 4 November 2020, invoking government guidance on the lockdown. The employer, Abraham Goldstein, insisted on the claimant’s return, relying on government guidance for working in homes and criticizing her for lower quality work done remotely. Following this, the claimant resigned, claiming constructive dismissal due to a breach of the implied term of trust and confidence.

The EAT examined several legal principles in this case:

  1. Sections 44 and 100 ERA: Health and Safety Cases - These sections provide protections for employees who bring attention to health and safety concerns, refuse to return to work, or take appropriate steps to protect themselves or others in the face of serious and imminent danger. The EAT affirmed that these provisions must be construed purposively, acknowledging the broad scope intended to protect employees’ health and safety.

  2. Employment Contract and the Implied Term of Trust and Confidence - Underpinning every employment relationship is an obligation of mutual trust and confidence. The EAT reiterated that an employer’s unreasonable insistence on an employee’s return to work during a public health emergency could constitute a breach of this term, justifying the employee’s resignation and a finding of constructive dismissal.

  3. Automatic Unfair Dismissal - The claimant’s dismissal was deemed automatically unfair under section 100(1)(d) ERA since it was primarily due to the claimant’s refusal to return to her place of work in circumstances she reasonably believed to be a serious and imminent danger.

Additionally, the EAT acknowledged case law precedent, including Rodgers v Leeds Laser Cutting Ltd [2022] EWCA Civ 1659, which delineated the necessity of a reasonable belief of serious and imminent danger at the workplace under section 44(1)(d), and Von Goetz v St George’s Healthcare NHS Trust UKEAT/1395/97, which helped interpret subsections (1)(c) and (e) with respect to dangers not exclusive to the workplace.

Outcomes

The EAT upheld the Employment Tribunal (ET) decision which found:

  • The claimant was entitled to protection under sections 44(1)(c), (d), and (e) ERA for her expressed concerns and refusal to return to the workplace due to perceived serious and imminent danger.
  • The claimant’s resignation amounted to constructive dismissal due to breach of the implied duty of trust and confidence.
  • The dismissal was automatically unfair under section 100(1)(d) ERA based on the claimant’s actions in response to health and safety concerns.

Conclusion

The EAT decision in Goldstein v Herve underscores the protective framework available to employees under the ERA in the context of health and safety concerns. It affirms that an employee’s reasonable belief in the potential for harm or seriousness, and the immediacy of the danger, can engage statutory protections even when the concerns are not confined to the physical boundaries of the workplace. The judgment also confirms that where an employer’s conduct in response to such concerns breaches the implied term of trust and confidence, a claim for constructive dismissal may be well-founded. This case is instrumental in guiding employers and legal professionals in navigating similar situations in the future.

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