And v Mr C Barros & Others London Underground Limited Heard by: CVP — 2021

These were multiple linked claims heard as a test case under s.44(1)(d) ERA 1996. The tribunal heard evidence from representative claimants Marcos Augusto, David Hewitt and Carlos Barros, and from the Respondent, London Underground Ltd. The claims arose from refusals to work between 18 and 23 May 2020 after the return from the emergency timetable to a more normal timetable, when some meal reliefs would be taken at foreign depots. The tribunal recorded that 45 claims remained and that 14 had been withdrawn or struck out.

The tribunal found that circumstances of danger potentially existed because meal reliefs at foreign depots could expose train operators to additional Covid-19 risk through increased contact with other workers and third parties. It also found that the representative claimants had a genuine belief that the danger was serious and imminent, and that this belief was objectively reasonable in light of the pandemic context, the pace of the timetable change, the consultation process, and the fact that reassurance materials were provided only after refusals were raised.

However, the tribunal held that the representative claimants could reasonably have averted the danger. It found that meal relief was not part of the core duties, that there was no obligation to eat in the depot canteen, and that reasonable alternatives existed, including eating outside the canteen, using other rooms or external spaces, or bringing food from elsewhere. Because all limbs of s.44(1)(d) were not made out, the detriment claims failed. The tribunal therefore dismissed the representative claims and, by extension, all claims in the schedule. It did not need to consider any s.13 unlawful deduction from wages claim.