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Health and safety dismissals | 2 recent cases employers need to know about

The coronavirus pandemic had underscored the importance of workplace health and safety like never before. And aside from the time, effort and cost involved in ensuring your organisation remains a safe place to work, there is a secondary challenge for employers: their employees.

Naturally, people’s individual circumstances, beliefs and perceptions of risk differ. This presents difficulties for employers, who have a responsibility to keep their workforce safe while at the same time ensuring the needs of the business are met. Inevitably, there will be friction – not only between employee and employer but between colleagues, too.

In the context of the last 12 months, it’s hardly surprising that health and safety related dismissals are currently on the rise. Of the cases that have made it to an Employment Tribunal recently – and there have been many – two have presented an interesting juxtaposition; in one, the employee was dismissed for resisting the employer’s orders; in the other, they were dismissed for doing what their employer asked them to do.

Here’s what you need to know.

Rogers v Leeds Laser Cutting Limited: Dismissed for refusing to come into work due to the pandemic

In March 2021, Leeds Employment Tribunal heard one of the first dismissals arising out of the coronavirus pandemic.

The claimant in this case, Mr Rogers, has a son with sickle cell anaemia who was required to shield due to his clinically extremely vulnerable status. As such, in a scenario that many employers will be familiar with, Mr Rogers left work and refused to return on the grounds that the virus presented a threat to his, and his son’s, health and safety. He was absent without permission for four weeks and was subsequently dismissed.

Though he had less than two years’ service, Mr Rogers was able to bring a claim for automatically unfair dismissal – which has no qualifying period – under Section 100(1)(d)(e) of the Employment Rights Act (ERA) 1996. This prevents employers from dismissing employees who, “in circumstances of danger which the employee reasonably believed to be serious and imminent”, left or refused to return to the workplace.

The Employment Tribunal rejected Mr Rogers’ claim. Referring to previous case law, it held that the following questions had to be addressed first before employees can seek to rely on protection under Section 100:

  1. Did Mr Rogers believe that the workplace presented a serious and imminent danger? (Note that in these cases, it is the employee’s reasonable belief that matters, not whether their belief is true or whether the employer agrees with them).
  2. Did he take, or propose to take, appropriate steps to protect himself or other persons from the danger or to communicate those circumstances to his employer?

These two tests must be satisfied before the Tribunal will consider whether the reason for the dismissal was that the claimant refused to work. If the answer to either of the above questions is no, Section 100 is not engaged, and the case cannot succeed.

Applying these tests to the facts of the case, the Judge ruled that Mr Rogers’ had a general belief in the dangers of coronavirus – not that the workplace itself presented any specific threat. What’s more, the Tribunal found that the employer had taken all reasonable steps to make the workplace COVID-secure, and that Mr Rodgers had not raised concerns with any of these measures. His claim was therefore dismissed.

"The decision in this case is good news for employers, who will naturally be worried about employees taking workplace safety concerns to court. That said, not all cases will have the same outcome. The Tribunal could have reached a different conclusion if the claimant had two years’ service (as there were failings in the employer’s handling of the case); the employer hadn’t taken all reasonable steps to make the workplace COVID-secure; and the employee had raised concerns about a lack of or inadequate safety measures before walking out. It is therefore essential that you approach these situations appropriately and that you can evidence the steps you have taken to keep people safe – or you might not be so lucky."

James Tamm, Director of Legal Services
Ellis Whittam

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Sinclair v Trackwork Ltd: Dismissed for ‘zealous’ approach to implementing health and safety measures

The Rogers v Leeds Laser Cutting case was closely followed by another contrasting case.

Here, Mr Sinclair, a Track Maintenance Supervisor, was tasked by his employer, Trackwork Ltd, to implement a new safety procedure. Unfortunately, Mr Sinclair’s approach didn’t go down well with his colleagues, not helped by the fact that they hadn’t been made aware of his assignment.

Mr Sinclair’s previous role within the rail industry had been of a safety-critical nature rather than track maintenance. Perhaps related to this fact, Mr Sinclair’s colleagues raised issues with his “overcautious and somewhat zealous” methods and, as a result, he was dismissed due to the “upset and friction” his activities had caused.

Feeling that he had been unfairly dismissed for following orders, Mr Sinclair took the case to Tribunal. He evoked Section 100(1)(a) of the Employment Rights Act 1996, which says that “an employee who is dismissed shall be regarded as unfairly dismissed if the reason for the dismissal (or, if more than one, the principal reason) is that, 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”.

The Employment Tribunal rejected Mr Sinclair’s claim on the basis that it was his demoralising approach that had been the reason for his dismissal, rather than him carrying out his designated health and safety activities. It therefore held that the matter didn’t fall within the scope of protection afford by Section 100 of the ERA.

However, the Employment Appeal Tribunal (EAT) disagreed. It held that Section 100 provides broad protection to employees who carry out health and safety activities at the employer’s discretion. It is to be expected, it said, that such activities may be met with resistance, and in this case, the upset and friction caused by Mr Sinclair’s actions was “not properly separable from the carrying out of the activity itself”.

In other words, employers cannot treat the upset caused by legitimate health and safety activity as a separate issue and use this as a reason to dismiss. To do so would undermine the protection given by the ERA.

It would be a different matter, the EAT held, if Mr Sinclair had acted “unreasonably or maliciously”; however, the clash with his colleagues had been as a result of him “diligently carrying out his duties”, albeit in their eyes obtrusively.

As such, the EAT ruled that the dismissal was automatically unfair, and remitted the case back to the Tribunal for further consideration.

"This case is a timely reminder that employees with designated health and safety duties are also protected from dismissal. As the Tribunal pointed out, it’s quite common for these individuals to become unpopular with colleagues, but that ‘friction’ won’t normally give employers grounds to dismiss unless the employee’s actions are entirely separable from the role they have been assigned. As Employment Tribunal claims relating to health and safety issues have soared in the past year, employers should take particular care in how they manage such individuals, and indeed anyone who raises health and safety concerns, as any detrimental treatment – including disciplinary action and withholding pay – could breach the protections of the ERA.”

James Tamm, Director of Legal Services
Ellis Whittam

Proactively prevent legal issues with expert support

COVID-19 has created the perfect breeding ground for whistleblowing claims. In fact, at Ellis Whittam, the percentage of cases our team have dealt with that involve a whistleblowing element has risen from 1.5% in 2017 to 15.4% this past year.

Dismissing or disciplining an employee for taking action, or proposing to take action, over a health and safety issue can leave employers exposed to claims for automatically unfair dismissal, and if their claim is successful, compensation is uncapped.

Before you act, speak to our Employment Law specialists for pragmatic advice. Our experienced team are experts at protecting employers against claims and can help you to identify the best course of action, navigate the process confidently, and avoid legal pitfalls along the way. For support, call 0345 226 8393 or request your free consultation using the button below.

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