Welcome to this month’s employment law update. In June we’re taking a look at:
- A health and safety dismissal case that reminds us that those with responsibility for health and safety have an important job to do – and this job comes with protection.
- Fire and rehire where a lack of consultation and any reasonable consideration of alternatives to dismissal put a solicitor’s firm in post-pandemic hot water.
- We cover the complexity of the law surrounding disability in a case where even the most experience EAT Judges got it wrong.
- And finally, following the ACAS report on conflict at work, we look at some of our best techniques for early resolution and nipping disputes issues in the bud.
Health and Safety Dismissal
Health and safety can often feel like a bugbear for some employees, especially during the current pandemic with additional measures in place to make workplaces covid-secure.
Employees that are constantly reminded to sanitise, put masks on, or make sure masks are covering noses, may feel they are victim of overbearing management or, at worst, bullying. And if several employees are all pointing their fingers at the same source of annoyance, the temptation may be to dismiss the individual to appease the many. However, the recent case of Sinclair v Trackwork is a reminder that those with responsibility for health and safety have an important job to do – and this job comes with protection.
Section 100(1)(a) Employment Rights Act 1996 says that an employee is unfairly dismissed if they were dismissed for carrying out activities assigned by the employer which are designed to reduce or prevent health and safety risks. A dismissal under this section will be automatically unfair and employees do not need the usual two years’ continuous service to bring these claims.
In Sinclair v Trackwork, the employee was a Track Maintenance Supervisor who was asked to implement a new safety procedure. His colleagues did not know he had been given this task and complained about his approach which they said was ‘over cautious and somewhat zealous’.
This created ill feeling and friction among his colleagues, for which the employee was later dismissed. He brought a claim for automatic unfair dismissal.
The employment tribunal said he had not been unfairly dismissed. He was dismissed because of the way he had carried out his health and safety activities and demoralised the workforce, not because of the health and safety activities themselves.
The EAT disagreed. Carrying out health and safety activities will often be met with resistance from colleagues. That is why the protection of section 100(1)(a) exists.
It would undermine the purpose of the law if any upset or ill feeling caused by legitimate health and safety activity could be hived off and treated separately from the activities themselves. The EAT said there may be cases where an individual’s conduct can be separated from the activities – if that conduct is unreasonable, malicious or irrelevant to the task – but that was not the case here. The employee had simply done as instructed and relationships with colleagues had soured as a direct result of those activities.
The EAT said he had been automatically unfairly dismissed and sent the case back to the tribunal to decide on remedy.
This case is an important reminder during the pandemic, where health and safety activities will often be delegated to members of staff and may be met with some resistance. But unless an employee is behaving in a malicious or unreasonable way in relation to those duties, they will be protected from any dismissal relating to the way they have carried out those duties.
We would advocate keeping a look out for your employees and managers who are having to do the unpopular tasks:
- Firstly, make sure the messaging in your business demonstrates from the top that health and safety duties are both vital and respected. That will guard against a culture of resistance to activities which are designed to keep everyone safe.
- Secondly, if issues do arise, remember that a thorough Investigation into issues will be vital. Investigators will have to consider not only what an employee has done, but also how they’ve done it. Our three part investigations planning technique gives a simple and effective approach, click here to see how it’s used in our training.
Remember, for the rest of the case updates you can sign up here. See you next month!