Health and safety protection for employees – an important reminder for employers

Employment Rights Act 1996

Once it has been established that a claimant is eligible to bring a claim for unfair dismissal, it will generally be for the employer to show that the reason or principal reason for dismissal was potentially fair. However, ERA and other legislation specify several reasons for dismissal that are automatically unfair. The claimant must establish that dismissal was for one of those reasons.

Under section 100(1)(a) ERA, a dismissal will be automatically unfair if the reason or principal reason is that, having been designated to carry out health and safety activities, the employee carried out such activities. “Designated” means that the employer must have instructed the employee to carry out specific activities in connection with preventing or reducing risks to health and safety in work. This must go over and above their ordinary job duties. Simply instructing employees to do a job in which they must take responsibility for their own health and safety is not enough.

Generally, claimants must have two years’ continuous employment to be eligible to bring a claim of unfair dismissal. However, no qualifying period of continuous employment is required for the right not to be dismissed on health and safety grounds. Moreover, if the dismissal is found to be automatically unfair under section 100(1)(a), the claimant is entitled to a statutory minimum basic award (currently £6,634) and the compensatory award is uncapped.

Employment Appeal Tribunal

The EAT allowed Mr Sinclair’s appeal. In reaching this decision, the EAT considered the judgment in Oudahar v Esporter Group (EAT 2011). This case established a two-stage test for the Employment Tribunal when deciding whether a different subsection, section 100(1)(e), applied. The EAT held that a similar approach should be taken in relation to section 100(1)(a), namely:

1. Was the employee asked to carry out activities in connection with preventing or reducing risks to health and safety and did the employee carry out those activities or propose to carry out such activities?; and
2. If so, was the sole or principal reason for the dismissal that the employee carried out such activities or proposed to carry out such activities?

If the answer to both questions is yes, the dismissal must be regarded as automatically unfair.

The EAT also considered the principles set out in the case of Goodwin v Cabletel (EAT 1998):

• The scope of the protection afforded by section 100(1) is broad;
• Activities carried out pursuant to designation under section 100(1)(a) will be protected and the manner in which such activities are undertaken will not readily provide grounds for removing that protection;
• However, conduct that is wholly unreasonable, malicious or irrelevant to the task may cause the employee to lose protection under section 100(1)(a).

Applying these principles  to the facts of this case, the EAT held that the “souring of relations” and “overzealous manner” in which Mr Sinclair carried out his duties are not matters which can be said to be properly separable from the carrying-out of the protected activities under section 100(1)(a); the Employment Tribunal had erred in finding otherwise. Mr Sinclair had been following instructions and had not exceeded his mandate. The EAT reasoned that the mischief section 100(1)(a) seeks to guard against includes the fact that health and safety activities may be resisted or regarded as unwelcome by employees. In its judgment, the EAT observed “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.”

Accordingly, the EAT allowed the appeal and held that Mr Sinclair’s dismissal was automatically unfair under section 100(1)(a). It remitted the matter back to the Employment Tribunal to determine remedy.