The Employment Appeal Tribunal (EAT) has held that an employee dismissed for demoralising his work colleagues as a result of the way in which he was attempting to implement a new health and safety procedure, was unfairly dismissed by his employer under Section 100(1)(a) of the Employment Rights Act 1996.
Section 100(1)(a) provides protection to workers who are dismissed by their employer on health and safety grounds. The EAT, in this case, held that health and safety grounds could include colleagues’ reaction to health and safety initiatives which are typically ignored, resisted and/or unwelcomed by other employees. Consequently, as the employer relied upon ‘upset’ and ‘friction’ triggered by legitimate health and safety activity as a reason for dismissing the employee, the dismissal was automatically unfair.
Mr Sinclair worked for Trackwork Ltd as a Track Maintenance Supervisor and had been employed by the company since 2018. One of his work responsibilities was to implement a new health and safety procedure, known as the Trackwork Safe System of Work procedure.
Trackwork Ltd did not inform their other workers of Mr Sinclair’s health and safety work obligations, and consequently, these workers raised concerns as to what Mr Sinclair was attempting to implement and the way in which he was doing this – an “overcautious and somewhat zealous” approach which represented a change from what the employees had been accustomed to and which caused “upset and friction”. After the workers raised their concerns with their employer, Mr Sinclair was dismissed for the demoralising impact that his actions had caused to them.
Mr Sinclair brought a claim for automatically unfair dismissal under Section 100(1)(a).
The Employment Tribunal (ET) dismissed his claim, ruling that despite Mr Sinclair doing what he was contracted to do, his dismissal was a direct result of the impact his actions had caused to his colleagues rather than the carrying out of health and safety responsibilities. In essence, it was the way in which he had attempted to implement the new procedure, rather than Mr Sinclair’s designated health and safety responsibilities and activities, that had caused him to be dismissed.
Mr Sinclair appealed against the ET’s findings.
The EAT allowed the appeal and subsequently ruled in favour of Mr Sinclair. It found that Section 100(1)(a) provides a more broad set of protections to employees undertaking contractual health and safety activities. This means that:
“…the souring of relations, or the over-zealous manner in which the Claimant carried out his duties, are not matters which can be said to be properly separable from the carrying-out of those activities.”
The EAT went on to state that if an employee’s conduct was unreasonable, malicious or irrelevant in the context of their health and safety responsibilities, the protections provided under Section 100(1)(a) could potentially be disregarded. Mr Sinclair’s actions did not amount to this.
The EAT ruled that Mr Sinclair’s was dismissed based on an automatically unfair reason and sent the case back to the ET to consider remedy.
This case illustrates the broad legal protection there is for employees who have health and safety responsibilities and that in most cases, it will not be possible to separate the manner in which they conduct those activities from that protection as the employer tried to do in this case. Where there is a health and safety element to any case, employers should take advice on their options.
We have seen a significant rise in cases concerning health and safety protection in light of the pandemic and although this case was not connected to the coronavirus, it is easy to see that employees raising concerns about Covid-secure workplaces and working practices could benefit from the same protection.
How Nelsons can help
If you would like any advice in relation to the subjects discussed in this article, please contact Laura or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.