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Dismissal for carrying out health and safety activities was unfair

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Dismissal for carrying out health and safety activities was unfair

Dismissal for carrying out health and safety activities was unfair

Much like the proverbial bus, you wait an age for a health and safety dismissal case and then two come along within a short space of time. Following hard on the heels of Rogers v Leeds Laser Cutting Limited where an employee was dismissed for not doing what he was supposed to do (he refused to come into work because of the pandemic), comes a case from the opposite end of the spectrum where an employee was dismissed for doing exactly what his employer wanted him to do (implement new health and safety measures).

In Sinclair v Trackwork Ltd, Sinclair was employed by Trackwork and tasked with implementing a new safety procedure. Trackwork did not inform its other employees about Sinclair’s mandate to do this, and they raised concerns about what he was trying to do. In particular, they complained about his ‘overcautious and somewhat zealous’ approach. He was subsequently dismissed for the ‘upset and friction’ that his activities had caused. Sinclair claimed that he had been automatically unfairly dismissed under S.100(1)(a) Employments Rights Act 1996 (ERA), which covers dismissal where the reason or principal reason is that the employee carried out health and safety activities having been designated to do so. He was unsuccessful at first instance with the employment tribunal finding the reason for dismissal was the fact that a loyal workforce had become demoralised by the way in which he was managing health and safety i.e. it was his methodology, rather than his designated health and safety activities, that caused his dismissal.

The Employment Appeal Tribunal (EAT) overturned the finding and allowed Sinclair‘s appeal, holding that S.100(1)(a) ERA gives broad protection to an employee carrying out health and safety activities at the employer’s direction. The EAT accepted that carrying out such activities will often be resisted, or regarded as unwelcome by colleagues and that it would wholly undermine that protection of s.100(1)(a) if an employer could rely upon the upset caused by legitimate health and safety activity as being a reason for dismissal that was unrelated to the activity itself. Only if the employee’s conduct was, for example, wholly unreasonable, malicious or irrelevant to the task in hand, could protection potentially be lost. Here it was Sinclair ‘diligently carrying out his duties’ that had caused relations to sour, coupled with a perception that he was being ‘over-zealous’. As none of these matters were properly separable from the carrying out of health and safety activities, the EAT substituted a finding that the dismissal was for an automatically unfair reason and remitted the matter to the tribunal to consider remedy.

The takeaway from this case is that someone carrying out health and safety activities at the employer’s behest enjoys a great deal of protection and the fact that they may become unpopular with colleagues in doing it does not (save in very limited circumstances) give grounds for dismissal. Employers who dismiss employees carrying out health and safety activities do so at their peril. Given that the number of tribunal claims continues to rise (up 25% in Q4 2020 compared with the same period in 2019) employees are clearly more willing to enforce their rights.  It is also worth pointing out that action short of dismissal (for example the issuing of disciplinary warnings) would also fall foul of similarly worded provisions contained in s.44 ERA.

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For more information on this update, or any Employment matters please contact Jon Taylor