Weather conditions are notoriously extreme on the roads approaching HMP Dartmoor.

The prison has a detailed adverse weather policy, which requires employees to gather up at a pick-up point, at a local supermarket, when conditions are poor.

In January 2013, when the claimants in this case were all due to start work at 8.00am, there was heavy snow, and they duly met at the pick-up point. Information was somewhat confused as to whether the road from the supermarket to the prison was safe to travel on, even in a 4×4. Some officers claimed that they had phoned the Highways Agency, who had told them that the road was closed and that to travel on it would be an offence. A prison governor, on the other hand, had been advised by the Highways Agency that the prison could use the road with caution.

This is why the 4×4 vehicles were sent to the pick-up point. Most of the staff travelled to the prison in those vehicles, but 13 did not. They had their pay docked for this, and brought claims for an unlawful detriment under s.44 Employment Rights Act 1996.

S.44 Employment Rights Act 1996

Under this legislation, employees are protected from detrimental treatment (such as having their pay docked) “in circumstances of danger which the employee reasonably believe(s) to be serious and imminent”, and he either takes action to avert the danger by refusing to return to his place of work, or takes appropriate steps to protect himself.

Whilst the Employment Tribunal had found that the claimants could not have ‘a reasonable belief’ in any imminent danger, because most of the other staff had taken the journey in the 4×4’s, the employment appeal tribunal did not agree and overturned this decision.

Implications of the EAT’s decision

Unfortunately, the EAT’s reasoning is somewhat technical, and does not provide any particularly valuable assistance to employers in adverse weather situations. The EAT held that the Tribunal had ‘erred’ (or made a legal mistake) by considering the claimants’ beliefs collectively, that they should have decided whether or not the employees had been told that the Highways Agency had given the go-ahead to use the road, and that they had not given sufficient consideration to whether or not the employees found the danger to be “serious and imminent”.

The case has been sent back to an Employment Tribunal for re-consideration, and we will keep you posted.

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Updates: For employers: Disciplinary issues | Trade unions | Tribunals | For employees: Tribunals |
Tagged with: Pay | Unfair dismissal |

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