UK: Health and Safety Duties – Automatic Unfair Dismissal
Mr Sinclair was employed as a Track Maintenance Supervisor and responsible for implementing a new safety procedure. After his colleagues, who were not aware he was required to do this, raised concerns about what he was trying to do, and complained about his “overcautious and somewhat zealous” approach, he was dismissed for the “upset and friction” he had caused.
He subsequently brought a claim on the grounds that his dismissal was automatically unfair because the reason or principal reason for his dismissal was that he was carrying out health and safety activities he had been required to do. His claim was rejected by an employment tribunal on the basis that it was the manner in which he had carried out his health and safety activities, rather than the health and safety activities themselves, that had caused his dismissal.
However, the EAT allowed his appeal. It found that the upset and friction caused by Mr Sinclair’s implementation of new health and safety activities that led to his dismissal, was not properly separable from the carrying out of those activities. The EAT noted that if employers could rely on the upset caused by legitimate health and safety procedures to dismiss employees, this would undermine the protection afforded under the legislation.
Key Action Points for Human Resources and In-house Counsel
Employees who are responsible for carrying out health and safety activities and are dismissed for causing upset and friction in the workplace for carrying out those activities will be afforded broad protection from dismissal.
However, employees may not be protected from dismissal in circumstances where their conduct is completely unreasonable, malicious, or irrelevant to their designated health and safety activities.