Many employers have severe weather policies setting out the rules when employees are unable to get to work. Where there is a possibility of non-payment, the EAT’s ruling in Edwards & Ors v The Secretary of State for Justice shows that the circumstances must be carefully investigated, particularly where employees argue that to travel would place them in serious and imminent danger.

On bad weather days prison officers were instructed to attend a pick-up point and wait until transport arrived to take them to the prison. On 18 January 2013, the Claimants declined to be taken to work at HMP Dartmoor on a road which had been closed following snowfall because they believed the journey would be too dangerous. The employer refused to pay them a day's wages in respect of 18 January 2013.

The Claimants claimed that they had suffered a detriment in breach of their rights under the S.44(1)(d) and (e) health and safety provisions of the Employment Rights Act 1996, i.e. in circumstances of serious and imminent danger they refused to return to work or  took appropriate steps to protect themselves, and that they had suffered an unlawful deduction from their wages.

An employment judge rejected the Claimants’ claims. The judge decided that the Claimants did not have a reasonable belief that there were circumstances of danger and so they were voluntarily refraining from going to work. It therefore followed that the claim for unlawful deduction from wages must also fail as the employees had declined to work when there was no supervening condition which prevented them from working through no fault of their own.

The EAT allowed the Claimant’s appeal holding that the employment judge did not deal sufficiently with three issues concerning the Claimants’ belief that they were in serious danger, i.e. the judge: 

1.     did not resolve an important issue of fact as to whether the Claimants were told that the police had sanctioned use of prison 4×4 vehicles;

2.     did not address the beliefs of all the claimants individually and the reasons for them; and

3.     wrongly took the view that just because some colleagues had made the same journey without difficulty or danger then the Claimants could not say they had a reasonable belief that there was danger – it does not follow that, because no accident had happened, on a relatively small number of journeys, there was no risk.

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