The claimant was employed as a driving examiner at the Pontefract office of the DVSA. In November 2018, the claimant was diagnosed with chronic kidney disease. In March 2020, all but critical driving tests ceased due to the Coronavirus pandemic. In July 2020, tests started again. The respondent required driving instructors to return to work, including those, like the claimant, considered to be clinically vulnerable, but not those who were clinically extremely vulnerable. The respondent took advice and instituted several adjustments to its usual practices. The claimant refused to return to work, and his pay was stopped. The claimant resigned on 10 August 2020. The claimant brought claims of health and safety detriment and dismissal, unfair constructive dismissal and disability discrimination. The employment tribunal held that there were circumstances connected with the claimant’s work which he reasonably believed were harmful or potentially harmful to health or safety, but that he worked at a place for which there was a health and safety representative or committee (although not based at the Pontefract office) – as a result the ss 44(1)(c) and 100(1(c) ERA claims failed. The ET also held that the Claimant was not disabled because his decision not to return to work was not an effect of his impairment, but resulted from an “unreasonable belief”, in circumstances in which it had held that the Claimant did reasonably believe there were circumstances connected with his work which were harmful or potentially harmful to health or safety, when considering the section ss 44(1)(c) and 100(1)(c) ERA complaints, albeit that that he did not hold a reasonable belief in serious and imminent danger. The Claimant appealed.

The EAT allowed the appeal in part. The ET did not err in ruling that the claims because ss 44(1)(c) and 100(1(c) ERA did not apply (it was sufficient for there to be a health and safety rep for the place which the claimant worked, even though it was not at the place of work). However, the EAT ruled that the ET did err in its approach to the Claimant’s decision not to return to work. The ET stated that the Claimant did not return to work because of an “unreasonable belief”. The ET did not specify what the belief was or why it was unreasonable. In considering the health and safety claims, while the ET concluded that it was unreasonable for the Claimant to believe that there was a serious and imminent risk to his safety in returning to work (for the purpose of section 44(1)(d) ERA), the ET accepted that he did have “a reasonable belief of circumstances connected with his work which were harmful to health” (for the purpose of section 44(1)(c)ERA.