Thu 27 May 2021

Manner in which H&S activities performed not separable from performance of activities

camongst staff when performing activities was automatically unfair.

Dismissals related to certain health and safety activities are automatically unfair, meaning employees do not require to have the usual two year service requirement to make a claim.  However, in some cases the manner in which the duties are carried out may be separated from the carrying out of the duties.  For example, if an employee was to act in a malicious way when carrying out the duties then a fair dismissal related to the malicious behaviour could be the result. 

In Sinclair v Trackwork Ltd the claimant was dismissed after he caused "upset" and "friction" with colleagues when carrying out an instruction to implement a new safety procedure.  The employer had failed to alert the claimant's colleagues to the implementation of the new procedure and they therefore thought they should be carrying on as normal.  The claimant meanwhile attempted to implement the new procedure with "all due diligence".  This caused friction with his colleagues who then raised concerns with management, resulting in the claimant's dismissal.

The claimant raised proceedings in the employment tribunal alleging his dismissal was because he had been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work and was dismissed for carrying out those activities.  This brought him within the statutory protection from dismissal for health and safety reasons set out in section 100(1)(a) of the Employment Rights Act 1996.  He also alleged that, in the alternative, the reason for dismissal was the making of a protected disclosure.  The employment tribunal found the reason for the dismissal was not because the claimant had been carrying out health and safety activities.  Rather it was because a loyal workforce had become demoralised by the manner in which the claimant had carried out his appointed task.  The assertion that the dismissal was due to having made protected disclosures was also rejected. 

The claimant successfully appealed.  The EAT found the "upset and friction" caused by him was not properly separable from the carrying out of activities on the facts of this case.  The claimant was not acting in a manner that exceeded his mandate, nor was it found that he had acted unreasonably or maliciously in doing what he had been instructed to do.  It was therefore the health and safety activities, and not the manner in which he carried them out, that was the principal cause of the dismissal. 

In reaching its conclusion the EAT noted that it would wholly undermine the protection afforded to employees by section 100(1)(a) if an employer could rely on the upset caused by legitimate health and safety activity as being a reason that was unrelated to the activity itself.  The carrying out of such activities will often be resisted, or regarded as unwelcome by other colleagues and it is this type of situation that the statutory protection is there to protect against.

Employers need to be careful when considering disciplining or dismissing employees for reasons related to the discharge of health and safety functions or actions as health and safety representatives.  Employees and workers who leave the workplace, or refuse to return to it in circumstances of serious or imminent danger are also protected, as are those bringing health and safety related concerns to the attention of the employer.  As lockdown restrictions ease and more employees return to the workplace there is a potential flashpoint around the introduction of new health and safety protocols which could lead to circumstances similar to the facts of this case.  Employers should always ensure any action taken against employees in these circumstances is carefully documented and a fair and reasonable procedure is followed.

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