Dismissal for causing poor staff relations by carrying out health and safety duties was automatically unfair

EAT: The way H&S activities were carried out was not separable from performing the activities.

Employment tribunal claims relating to health and safety issues have been in the spotlight this year. We have published a number of recent articles on protections for workers in the context of fears about contracting Covid-19 in the workplace under sections 44 and 100 Employment Rights Act 1996 (ERA). Available on our website, these include:

• Refusing to work because of fears about Covid-19 - section 44 of the Employment Rights Act
• Are workers protected after refusing to work because of health and safety fears?
• Was an employee automatically unfairly dismissed for refusing to attend work due to the Covid-19 pandemic?

A recent case in the Employment Appeal Tribunal is a timely reminder that employees are also protected from dismissal or detriment because they have carried out health and safety activities after being designated to do so by their employer.

The EAT considered the difficult question of whether a dismissal for causing friction amongst staff in the way H&S duties were carried out was for an unlawful reason and so automatically unfair.

Case details: Sinclair v Trackwork Ltd

Mr Sinclair worked for just over two months for Trackwork as a Track Maintenance Supervisor.  He was tasked with implementing the Trackwork Safe System of Work procedure (referred to as NR019).  Trackwork failed to inform Mr Sinclair’s colleagues of his mandate to implement NR019. Mr Sinclair began to implement NR019 with “all due diligence”. His colleagues were unhappy with his approach, including his over-concern with safe systems of work, and they reported their concerns to management.  Trackwork dismissed Mr Sinclair for the upset and friction caused by his attempts to implement NR019.

Mr Sinclair brought claims for automatic unfair dismissal related to health and safety activities under section 100 ERA, and for making a protected disclosure (whistleblowing). An employment tribunal dismissed his claims.

On appeal against the section 100 ERA finding, the EAT disagreed with the tribunal and substituted its decision that Mr Sinclair had been automatically unfairly dismissed.

The EAT made clear the two stages in deciding on such a claim:

1. Determine whether the designated employee was asked to carry out activities in connection with preventing risks to health and safety and that the employee carried out, or proposed to carry out, such activities. 
2. If the conditions of the first stage are satisfied, consider if the sole reason or the principal reason for dismissal was that the employee carried out such activities, or proposed to carry out such activities.

In this case, it was accepted that the claimant had been asked to carry out activities in connection with preventing risks to health and safety and had done so. The key question was whether the sole or principal reason for the dismissal was that he had carried them out or proposed to carry them out.

The EAT noted that Trackwork’s given reason for the dismissal was the upset caused because of the manner in which the H&S duties had been carried out. This was the reason cited in the dismissal letter. Although there were other complaints about the conduct of the claimant, the tribunal found that they were largely exaggerated and were not part of the reason to dismiss. 

The EAT concluded that this was not a case where the manner in which the duties were carried out could be separated from carrying out the duties, for example where the duties are carried out in a malicious or extraneous way. The EAT noted that the law seeks to protect employees designated with H&S duties as these will often be resisted by colleagues stating that: “It would wholly undermine that protection 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.” In this case, Mr Sinclair had simply done what his employer had asked him to do.

Comment

Employers should be alert to the special protections which apply to employees and workers who have designated health and safety duties, act as health and safety representatives, bring health and safety concerns to their attention, or who take preventative action in circumstances where they reasonably fear that they or someone else is in serious and imminent danger. Communications from an employee or worker concerning alleged legal breaches, including of health and safety law, could also qualify as protected disclosures under whistleblowing legislation where the individual could reasonably believe them to be brought in the public interest. 

In the context of the current pandemic, the imposition of health and safety protocols in the workplace may well be particularly contentious due to wide-ranging new practices being brought in very swiftly to react to ever-changing guidance and levels of risk.

Employers who are considering taking steps to discipline, dismiss or subject to detriment those who are charged with carrying out health and safety roles should first consider whether there is a link between that step and the health and safety duties, or a protected disclosure, which could give rise to a claim. In order to minimise the risk of claims, employers should ensure that the lawful and fair reasons for those decisions are carefully documented. We strongly recommend that employers considering such action take legal advice before doing so.

Claims of this nature can be brought before the employee has two years’ service and financial compensation awards for automatic unfair dismissal for these reasons are not subject to the normal cap (the lower of £89,493 or one year’s gross salary).

In this case, the employer’s failure properly to communicate with the workforce about its plans for a new safe system of work, along with its failure to guide Mr Sinclair on his approach to the changes, seem to be at the heart of what went wrong. Employers have a statutory duty to consult with staff about health and safety matters. The design and implementation of new H&S systems and measures will always be more likely to succeed and to find broad acceptance where employers include staff at all stages of the process and provide regular and consistent messaging.