All employers are under a statutory duty to provide employees with a safe place of work. The COVID-19 pandemic has brought these obligations into renewed focus and many employers have taken the opportunity to review their health and safety practices and procedures to ensure a COVID-19 secure environment for staff. We look at a recent case that is an important reminder of the health and safety protection afforded to employees in unfair dismissal claims.
The Employment Appeal Tribunal (EAT) recently heard the claimant’s appeal in the case of Sinclair v Trackwork Limited and held that the dismissal of an employee ordered to implement a new safety procedure which caused “upset and friction” among colleagues was automatically unfair under section 100(1)(a) Employment Rights Act 1996 (ERA).
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.
On 8 October 2018, Mr Sinclair commenced employment with Trackwork Ltd as a Track Maintenance Supervisor. He was tasked with implementing a new safety procedure based on a system operated by Network Rail, known as NR019. However, Trackwork Ltd failed to inform Mr Sinclair’s colleagues that he had a mandate to implement the new procedure. Mr Sinclair approached the task before him with “all due diligence”. The existing workforce became unhappy with what Mr Sinclair was trying to do as the new system represented a change from what they had previously been accustomed. Mr Sinclair’s colleagues raised their concerns with management.
Trackwork Ltd dismissed Mr Sinclair on 11 December 2018 for the “upset” and “friction” caused by his attempts to implement NR019. Mr Sinclair claimed that his dismissal was automatically unfair under section 100(1)(a) ERA as the reason or principal reason for his dismissal was that, having been designated to carry out health and safety activities, he carried out such activities.
The Employment Tribunal dismissed the claim finding that, although Mr Sinclair had only been following instructions, the reason for his dismissal was not the carrying-out of health and safety activities but rather the “overzealous” manner in which those activities were undertaken and the “upset” and “friction” it caused amongst his colleagues. In doing so, the Employment Tribunal held that the manner in which protected activities under section 100(1)(a) are carried out is properly separable from the activities themselves.
The Employment Tribunal reached its verdict “with a heavy heart” and expressed sympathy for Mr Sinclair who “was only doing what he had been set on to do by the respondent”.
Mr Sinclair appealed the decision.
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:
- 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
- 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.
This case is a useful reminder to employers of the significant health and safety protections afforded to employees under UK legislation. With no qualifying period of service needed and compensation uncapped, employers need to act with particular care and should take legal advice where dismissal may be related to health and safety activities. Save where the employee’s conduct is wholly unreasonable, malicious or irrelevant to the task at hand, it will be difficult for the employer to rely on the manner in which an employee carries out health and safety activity as a reason for dismissal separate to the activity itself.
This case is particularly pertinent in light of the COVID-19 pandemic with many employers implementing new health and safety practices and procedures to ensure a COVID-19-secure environment for staff. Both the Employment Tribunal and the EAT criticised the respondent in this case for failing to communicate with employees regarding implementation of the new safety procedure. Employers are reminded of the importance of clear and open communication in minimising “friction” in the workplace. There is extensive guidance available on the Health and Safety Executive’s website about working safely during the pandemic and this includes specific guidance on the importance of communicating information to staff.
We have now had a number of pandemic-related Employment Tribunal decisions arising out of dismissal on health and safety grounds. For more details see our article here.
We can expect to hear about many more similar claims in the months ahead.
Enjoy That? You Might Like These: