Mr Darrell Miles v Driver and Vehicle Standards Agency (DVSA) — 2020

The claimant was employed as a driving test examiner and had stage II chronic kidney disease. During the Covid-19 pandemic he raised concerns about returning to work in a vehicle with members of the public. The respondent treated him as clinically vulnerable and expected him to return when tests resumed, relying on risk assessments, public health guidance, and measures including face coverings, hygiene, reduced tests, vehicle cleaning, and ventilation. The claimant said no measure short of two metre social distancing would be safe and resigned after being told he should return or take unpaid leave.

The tribunal found the claimant had a physical impairment, but the evidence did not establish that chronic kidney disease had a substantial adverse effect on his normal day-to-day activities or that it was likely to do so in the relevant legal sense. It therefore found he was not a disabled person, so the disability discrimination and reasonable adjustments claims could not succeed.

On the section 44 detriment claims, the tribunal found that being placed on unpaid leave, the telephone discussions, and the absence of alternative work were not detriments on the facts. It accepted that the claimant raised health and safety concerns and reasonably believed there were circumstances connected with work that were harmful or potentially harmful to health, but found section 44(1)(c) was not met because there was a health and safety committee or representative route that it was reasonably practicable to use. It also found the claimant's belief that returning exposed him to serious and imminent danger was not reasonable in light of the available information, mitigation measures, and lack of medical evidence specific to him.

For the unfair dismissal claims, the tribunal rejected the alleged breaches of the implied term of trust and confidence and the implied term to take reasonable steps to keep the workplace safe. It found there was no constructive dismissal, so the ordinary unfair dismissal claim failed, and the automatic unfair dismissal claim under section 100 also failed for the same reasons as the section 44 analysis.