The issue of workers failing to use health and safety equipment in relation to the law and procedure of unfair dismissal has been considered by courts and employment tribunals in a number of cases. Robert Spicer reports.

Unfair dismissal claim

Most recently, these issues have been considered by the Court of Appeal in the case of Newbound v Thames Water Utilities Ltd (2015).

The facts, in summary, were that N was employed by T to maintain mechanical devices in sewers. At a meeting with his manager, he was instructed to use breathing apparatus. This was a new requirement set out in an SHE4 form which N signed. The work also required a C permit which authorised entry into a confined space.

N entered the sewer wearing only a respiratory dust mask. He was subsequently removed by a safety team on the basis that the work could not continue for health and safety reasons.

A disciplinary investigation found that N was a senior employee and should have been fully aware of the high-risk nature of the operation and the additional safety precautions required. N was dismissed for gross misconduct for seriously infringing health and safety rules. He complained of unfair dismissal.

The employment tribunal found in his favour on the basis that no reasonable employer would have dismissed him in the circumstances. It found that N had been 40% to blame and awarded him compensation of £54,197.84. The employer appealed to the Employment Appeal Tribunal (EAT), relying in part on a letter from UNISON to N stating that his unfair dismissal claim had no reasonable prospect of success. The EAT upheld the appeal. N appealed to the Court of Appeal.

That court allowed the appeal and made the following points.

  • An employment tribunal was entitled to find that a dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer.

  • The practice of entering sewers without breathing apparatus had been condoned for many years.

  • It had not been made clear to N that failing to wear breathing apparatus would justify dismissal.

  • Length of service was not forbidden territory for the employment tribunal. N had 34 years’ service with a clean disciplinary record.

  • N had been treated differently from a colleague.

  • There was a real possibility of apparent bias: a lay member of the EAT was the National Secretary of UNISON.

Written warning

Another example of the relationship between unfair dismissal and health and safety is the Scottish case of Diosynth Ltd v Thomson (2006).

T was employed by D as an operator in a chemical processing plant. The production process involved the risk of accidents from explosions or chemical spillages. There was a system of health and safety rules which stated that a serious breach of the rules would be treated as gross misconduct. T was disciplined in 2000 for a breach of these rules. He was given a written warning which was to remain on his record for 12 months.

In 2001, 17 months after the issue of the written warning, an operator was killed in an explosion at the plant. The investigation into the incident revealed that T had committed other breaches of the health and safety rules. He was summarily dismissed and complained of unfair dismissal to an employment tribunal.

His complaint was dismissed on the basis that, although the previous warning had expired, the employer had been entitled to take it into account as part of the history of events.

T appealed to the Scottish Court of Session, which decided the following.

  • The employer had acted unreasonably in treating an expired warning as a determining factor in deciding to dismiss T for further breaches of health and safety rules.

  • T had been unfairly dismissed.

  • An employee is entitled to assume that a written warning, specifically subject to a time limit, will cease to have effect after that time limit has expired.

  • A warning which remains hanging over an employee’s head for an indefinite period will not normally be consistent with good industrial practice.

  • If it had not been for the warning, T would not have been dismissed. The employer had acted as if the warning remained in force beyond the expiry of the 12-month period. This had been unreasonable on its part.

Constructive dismissal

A different issue in the context of health and safety and unfair dismissal was considered in the case of Royle v Greater Manchester Police Authority (2007).

R was a welfare officer employed by G. She resigned and claimed that G’s failure to take reasonable care for her health and safety amounted to a fundamental breach of contract for the purposes of constructive dismissal. It was also argued on R’s behalf that a meeting with G’s representative had been badly handled and that this had been the last straw in a cumulative series of events which amounted to a fundamental breach of contract.

Her complaint to an employment tribunal was dismissed. The tribunal found that G had supported R with regard to her difficulties with her working conditions and that R had not fully communicated her problems.

R’s subsequent appeal to the EAT was dismissed. The EAT stated that the employment tribunal had applied the correct test in its approach to R’s resignation and had been entitled to reach the conclusion which it did.

In the case of Knight v Barra Shipping (1992), K worked on an oil rig supply vessel. He was required to work on the deck in bad weather. He resigned because the safety barrier on the stern of the vessel was not in position. He claimed that the absence of adequate safety precautions had amounted to a fundamental breach of contract and that he had been constructively dismissed.

An industrial tribunal, as it was then called, found that, on the evidence, there had been no fundamental breach of contract. Working in the North Sea in winter necessarily involved cold and wet conditions.

On appeal to the EAT, K’s appeal was dismissed. The decision of the tribunal should not be interfered with. Nevertheless, there could be constructive dismissal where an employee was required to work in intolerable conditions, eg where a serious danger to life was involved.

Constructive dismissal arises when an employee resigns because of a fundamental breach of the contract of employment. The breach of employment must be “fundamental”. This may be very difficult to prove.

Last reviewed 27 May 2016