Legal

Employees carrying out unwelcome safety measures are protected

12 Jul 2021 By Avril England

In light of a recent EAT ruling, Avril England warns employers of the consequences of dismissing staff carrying out key health and safety duties

Issue

A happy workforce is a productive workforce, as the saying goes. Staff morale will be important for every business as not only has it been shown to result in better performance, but it also reduces the costs of high staff turnover. 

It may not be surprising then that where an employee’s conduct has a negative demoralising impact on a number of other staff, an employer may be able to fairly dismiss them even if they are not guilty of misconduct. However, where someone designated to do so is carrying out health and safety duties they have specific statutory protection against being dismissed. 

In Sinclair v Trackwork Ltd the question was whether the upset and friction caused by the manner in which an employee had implemented health and safety reforms could give grounds for a fair dismissal despite the statutory protection.

Facts

Mr Sinclair, a track maintenance supervisor, had been given responsibility for implementing a new safety procedure mandated by Network Rail. The staff he had been supervising were not told that he had been given this task. 

Sinclair brought about the changes at a pace that surprised management. The new procedures represented an unwelcome change to the way in which most employees could carry out their work on the tracks. However, Sinclair firmly rejected any staff objections. This caused friction and unrest among the workforce and several submitted complaints about him. 

The staff resented the manner in which the changes had been forced upon them and their concerns dismissed. Management were informed that Sinclair’s actions had caused ‘upset and friction’ among the workforce and that he had in particular taken an ‘overcautious and somewhat zealous’ approach. Concerned that it would now have to deal with an unhappy workforce, the employer decided Sinclair should be dismissed for his actions.

Decision

Sinclair did not have sufficient service to bring a claim for ordinary unfair dismissal. He relied upon the statutory protection that applied under section 100(1)(a) of the Employment Rights Act 1996 and argued that his dismissal was automatically unfair as the reason or principal reason was that he had been dismissed for carrying out health and safety activities. 

The Employment Appeal Tribunal (EAT) agreed. It overturned the decision of the employment tribunal and found that his claim succeeded. Sinclair had been designated to carry out health and safety activities and could rely upon the specific statutory protection against dismissal. 

It was considered to be important to recognise that changes in relation to health and safety will often be resisted or regarded as unwelcome by employees. However, it would wholly undermine the statutory protection if an employer could rely upon the upset caused by that legitimate health and safety activity as a reason for dismissal unrelated to the activity itself.

Key points

The decision highlights that there will need to be exceptional circumstances for an employer to be able to treat the employee’s conduct as properly separable from the protected health and safety activities they have been designated to carry out. 

It might be possible in circumstances where the employee had clearly exceeded their mandate and acted in a manner that was malicious or untruthful. However, the conduct in question would have to be so extreme as to make the health and safety activity irrelevant to the decision-making process.

Overall, the three things to remember are:

  • Dismissal for carrying out health and safety duties is automatically unfair.
  • The employee will be able to bring a claim regardless of their length of service.
  • The fact that the workforce has become demoralised by the way in which the health and safety activities were managed does not mean that the statutory protection can be bypassed.

Avril England is an employment partner at Gateley Legal

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