Mr A Goldstein v Ms M Herve
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Eady |
| Court | Employment Appeal Tribunal |
| Published date | 14 March 2024 |
Judgment Approved by the Court for handing down: GOLDSTEIN v HERVE AND ANOR
© EAT 2024 Page 1 [2024] EAT 35
Neutral Citation Number: [2024] EAT 35
Case No: EA-2022-001337-NT
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 14 March 2024
Before :
THE HONOURABLE MRS JUSTICE EADY DBE, PRESIDENT
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Between :
ABRAHAM GOLDSTEIN Appellant
- and –
MARIE-PIERRE HERVE Respondent
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Michael Salter (instructed by Fox & Partners Solicitors LLP) for the Appellant
Louise Mankau (instructed by Rahman Lowe Solicitors) for the First Respondent
Hearing date: 27 February 2024
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JUDGMENT
This judgment was handed down by the Judge remotely by circulation to the parties' representatives
by email and release to The National Archives.
The date and time for hand-down is deemed to be 10:30am on 14 March 2024
Judgment Approved by the Court for handing down: GOLDSTEIN v HERVE AND ANOR
© EAT 2024 Page 2 [2024] EAT 35
SUMMARY
Unlawful detriment - automatic unfair dismissal - health and safety cases – sections 44 and 100
In upholding the claimant’s claims of health and safety detriment, the ET accepted that she had raised concerns
about travelling to work, and about attending at her place of work during the coronavirus pandemic, which fell
within section 44(1)(c) Employment Rights Act 1996 (“ERA”). It further found that she had subsequently
refused to return to her workplace, once the second lockdown came into force, in circumstances that fell within
the ambit of section 44(1)(d) and (e) ERA. Holding that the respondent’s reliance on government guidance
was unreasonable and wrong, and that he was insisting on the claimant’s return to the workplace during the
lockdown purely to avoid a moderate inconvenience, the ET was satisfied he had acted in breach of the implied
term of trust and confidence and the claimant had been constructively dismissed. No potentially fair reason
had been identified for this dismissal and the ET found that the respondent’s actions were because of the
claimant’s refusal to return to t he workplace, so as to give rise to an automatically unfair dismissal for the
purposes of section 100(1)(d) ERA. On the respondent’s appeal.
Held: dismissing the appeal
The ET had been entitled to find that the concerns expressed by the claimant in late September 2020 were
“connected with” her work for the purposes of section 44(1)(c): she was concerned about the health and safety
risks both from commuting to and from work at that time and in being physically present in the workplace
(which was also the respondent’s home). Subsequently, by her email of 4 November 2020, the ET found that
the claimant had refused to return to the workplace once the second lockdown came into force at midnight on
5 November 2020. It had permissibly held that was a refusal within the ambit of subsection (1)(d) and an
appropriate step for the purposes of subsection (1)(e). In seeking to challenge the ET’s decision, the respondent
was seeking to go behind its findings of fact, and was wrongly eliding the position adopted by the claimant
after 5 November 2020 (when she was refusing to return to the workplace) with that she had taken in late
September/early October 2020 (when she had agreed to come into work on a limited basis). Moreover, the ET
had been entitled to find that the claimant had a reasonable belief in the circumstances connected with her
work, or at her place of work, as being potentially harmful to health and safety and/or as giving rise to a serious
and imminent danger; the ET’s finding of fact in this regard was to be contrasted to the finding made in
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