The road to Dartmoor Prison is high, bleak and exposed – well, of course it is. The prison was built in the eighteenth century to contain French prisoners of war! On 18 January 2013 the road was closed at the Yelverton roundabout because of snow and a threat of more to come.
By 8am 50 Prison Officers had gathered in the car park of a supermarket in Tavistock. At 9am, after checking road conditions with the Council, the Governor sent a fleet of 4×4 vehicles to collect the staff. Most of them were taken to work safely but 13 refused to go. They stayed in the nice warm coffee shop at the supermarket until 11am when they went home. They reasoned the road was closed, they heard unconfirmed reports of a vehicle nearly coming off the road and another going into a ditch, Radio Devon was reporting incidents on other roads and they believed it was an offence to drive on a closed road. They refused to travel because in their judgement it was too dangerous. The Prison Service refused to pay them for the day and they claimed this was an unlawful deduction from their wages.
This led to a 3 day hearing (yes – 3 days!) in the Employment Tribunal. The Employment Judge robustly dismissed the claims finding the Claimants didn't have a reasonable belief that the circumstances were such as to excuse them from going to work – not least because their colleagues got to work without incident. Supported by their Trade Union, the Prison Officers appealed.
The EAT overturned the decision. It said the Employment Judge did not resolve some important issues of fact. In particular, (1) he failed to address the individual safety concerns of each of the Claimants and (2) it was wrong to say the Claimants could not hold a reasonable belief of serious and imminent danger just because other colleagues reached work safely; it doesn’t follow that, because no accident had happened, there was no risk.
Of course the EAT is right but I reckon many of us would have made the same decision as the Prison Service and the Employment Judge so this is probably a good time to review those adverse weather policies. It won't be long before autumn leaves halt the railways and stray snowflakes…oh let's stop this now and enjoy our Indian summer!