In person For the v Mr S Peacock — 2022

The Claimant, who was aged 71 in August 2020 and the only member of staff over 70, worked as an ESOL teacher at the College. The Tribunal found that the Respondent returned staff to work under general Covid safety measures and an individual risk assessment process, but that the process was poorly implemented for staff whose age made them more vulnerable. The Claimant raised concerns informally in August 2020, then in writing on 28 August, 17 September and 25 September 2020, focusing on ventilation, room capacity, distancing, and the lack of a clear, personalised response to her age-related vulnerability.

The Tribunal found that the Respondent applied a number of relevant PCPs to the Claimant, including using G26, a room with a sealed window; not carrying out a formal H&S assessment of ventilation and aerosol transmission in the relevant rooms; not limiting class numbers so as to permit distancing or one student per desk; not having someone with H&S experience assess distancing; not setting an explicit maximum on the 16 to 19 ESOL class; and relying on generalised Covid measures without adequate additional measures related to age or adequate consideration of individual circumstances. It accepted that the College had some general protective measures and had consulted unions and the local authority, but found that the IRA process was not properly promoted, was handled passively by Ms Iosif, and did not lead to the Claimant’s specific concerns being addressed.

The Tribunal held that the Claimant suffered particular disadvantage because those aged 70 and over were more vulnerable to serious illness from Covid, and that the PCPs left her without adequate assurance that her teaching environment had been made safe for her return. It found that the Respondent failed to engage substantively with the Claimant’s IRA, her 25 September 2020 email, her 29 October 2020 email, and her grievance; instead it relied on general assurances and sought to close down the grievance process. The Tribunal accepted that the Respondent’s legitimate aim was to take reasonable steps to protect staff and students during the pandemic, but concluded that the PCPs were not a proportionate means of achieving that aim because the Respondent failed to give adequate consideration to additional measures for the Claimant’s individual circumstances.

On time limits, the Tribunal held that the relevant PCPs continued at least until 11 March 2021, and in any event it would have extended time as just and equitable. It found a wholesale and unreasonable failure to comply with the ACAS Code and said it would be inclined to an ACAS uplift of 25% at the remedies hearing, subject to further submissions. No monetary award was made in this judgment because remedy was left to a later hearing.