In the case of Sinclair v Trackwork Ltd, the Employment Appeal Tribunal (EAT) has found that an employee’s dismissal due to the upset he had caused whilst carrying out his health and safety duties was automatically unfair.

Background

Section 100(1) of the Employment Rights Act 1996 (ERA) provides:

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that –

(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities”

In this case, Mr Sinclair, a Track Management Supervisor, was asked by his employer, Trackwork, to implement a new safety procedure. Some of his colleagues raised concerns that the way in which he approached this task was “overcautious and somewhat zealous”. Following an investigation, Mr Sinclair was dismissed on the basis that his actions caused “upset and friction”.

Mr Sinclair claimed automatic unfair dismissal under section 100(1) ERA. The Employment Tribunal rejected his claim, finding that Mr Sinclair had not been dismissed as a result of his health and safety activities, but rather because of the way he had gone about carrying them out, which had led to friction within the team. He appealed to the EAT.

EAT decision

The EAT upheld Mr Sinclair’s appeal and dismissed the ET’s findings. The EAT found that section 100(1) offers broad protection to an employee who is undertaking health and safety activities requested by the employer. In reaching its decision, the EAT noted that often the carrying out of health and safety activities is resisted or regarded as unwelcome by other employees, and the “mischief” that section 100(1) is intended to protect against takes this into account. “It would wholly undermine that protection if an employer could rely upon the upset caused by legitimate health and safety activity as a reason for dismissal unrelated to the activity itself.”

In this case, the actions of Mr Sinclair were not found to be malicious, untruthful or irrelevant to the task in hand and therefore could not be separated from the health and safety activity and so the protection provided by the ERA applied to his dismissal. A finding of automatic unfair dismissal was substituted by the EAT and the case was remitted to the ET to consider remedy.

What to take away

This case emphasises that section 100(1) offers broad protection to employees carrying out health and safety duties requested by their employer, and employers should consider carefully whether any proposed disciplinary action could be in any way connected to those duties. That is not to say that the manner in which the employee conducts him/herself in carrying out health and safety duties will always be irrelevant but employers should be sure that the employee’s conduct has been wholly unreasonable or malicious, for example, before deciding to proceed and ensure that any such behaviour is well documented.

Even where there is no automatic unfair dismissal, employers of course still need to ensure that they have a “fair” reason for dismissal and that they follow a fair procedure in every case, otherwise a claim for “ordinary” unfair dismissal may follow.

For further information on how this issue might affect your organisation, please contact Sian Bond, Chloe Edwards or Alistair Kernohan.