Ms K Davis v The Governing Body of St Michael’s Church of England School Middleton and 1 other — 2024

Ms K Davis worked for St Michael’s Church of England School Middleton from 1 September 2019 as a before and after school club leader. After concerns about Covid arrangements in January 2021, she did not return to the workplace from 4 January, worked from home for a period, then went on sick leave from 26 February 2021. She resigned by email on 6 May 2021, to take effect on 6 June 2021. At the start of the hearing she withdrew the complaint against Ms Caroline McKeating, and the Tribunal went on to consider only the Employment Rights Act 1996 claims under sections 44 and 100.

On the section 44 detriment claim, the Tribunal found that Meryl Bruen was the designated health and safety lead and that the claimant knew she could have raised concerns with her, but chose instead to raise them directly with Ms McKeating. It found that Ms McKeating had put measures in place in line with government and local authority guidance, that the relevant risk assessments were approved, and that the Health and Safety Executive later said the risk assessment was in line with Department for Education guidance. The Tribunal accepted that the claimant genuinely believed that mixing children from different bubbles in Kids Club was unsafe, but held that she had not shown circumstances of serious and imminent danger at the workplace and that such a belief would not have been reasonable in any event.

The Tribunal held that most of the section 44 allegations were presented out of time and that there was no basis for extending time. The only allegation treated as in time was 5.15, namely that Ms McKeating told the grievance panel incorrectly that no evidence had been received from the claimant. The Tribunal found that the claimant’s evidence had in fact been included in the grievance pack and that Ms McKeating had meant "no further evidence", so that allegation was not well founded and did not amount to a detriment.

On the section 100 claim, the Tribunal held that the matters relied on did not amount to a fundamental breach of the implied term of mutual trust and confidence, so the claimant was not constructively dismissed. It further held that, even if there had been a constructive dismissal, the section 100(1)(c) and (d) conditions were not satisfied because the respondent’s actions were directed to complying with guidance and keeping Kids Club open, not because of the claimant’s health and safety complaints or a refusal to return in circumstances of serious and imminent danger. The provisional remedy hearing listed for 1 March 2024 was cancelled.