Last reviewed 24 August 2021
Barrister Robert Spicer reports on an important recent Employment Appeal Tribunal decision.
Section 100 of the Employment Rights Act 1996 deals with unfair dismissal for health and safety reasons. Section 100(1)(a) covers dismissal where the reason, or principal reason, for the dismissal is that an employee carried out, or proposed to carry out, health and safety activities, having been designated to do so. Such a dismissal is classified as being automatically unfair. This means that there is no minimum service requirement to claim unfair dismissal.
The application of this provision has recently been considered by the Employment Appeal Tribunal (EAT) in the case of Sinclair v Trackwork Ltd.
The facts, in summary, were that Mr Sinclair (S), a track maintenance supervisor employed by T Ltd, was instructed to implement the Trackwork Safe System of Work, a new health and safety procedure. This procedure was based on a system operated by Network Rail, known as NR019. T Ltd did not inform its other employees about S’s task.
S proceeded to implement the new system with all due diligence. The other employees raised concerns about S’s actions. They complained about his zealous and overcautious approach. Issues raised by other employees included S’s aggressive attitude and behaviour, that he showed “male bravado” and that he was involved in a physical altercation. S was dismissed because of the upset and friction caused by his actions. He complained to an Employment Tribunal of automatic unfair dismissal under s.100 of the 1996 Act.
The Employment Tribunal
The Employment Tribunal dismissed the complaint. It found that, although S was only following instructions, the reason for S’s dismissal was that a loyal workforce had been demoralised by his management of health and safety. It was S’s methodology, rather than his health and safety activities, which had caused his dismissal. T Ltd was operating in a health and safety critical environment and had an impeccable health and safety record. The Tribunal also found, however, that the allegations against S were exaggerated.
The ET also made the following points.
It had a great deal of sympathy for S. He found himself the victim of poor management. He was given a brief to implement NR019. He did not know that the employees whom he was managing had not been given the same brief. As far as the employees were concerned, it was business as usual and therefore inevitably friction was created because S was trying to implement a different system of work.
On behalf of the employer it had been stated that it wished to see a slow change in the way in which it operated. This was never communicated to S.
The Tribunal had to view matters in the context of the employer operating in a health and safety critical environment. It had to adhere to exacting health and safety standards in order to operate. It had won awards, for example the Taylor Woodrow Subcontractor of the Year Award for 2018.
S appealed to the Employment Appeal Tribunal (EAT).
The Employment Appeal Tribunal
The EAT allowed the appeal. It substituted a finding of automatic unfair dismissal and made the following points.
Section 100 required a two-stage approach. First, was an employee asked to carry out work in connection with preventing risks to health and safety and whether this work was carried out or proposed to be carried out. Second, whether this was the reason or the principal reason for the dismissal. In some circumstances the way in which health and safety activities are carried out can be separated from the activities themselves.
It would wholly undermine the protection provided by health and safety legislation if an employer could dismiss for upset caused by a legitimate health and safety activity by saying that the upset was unrelated to the activity itself. It could only be potentially fair to dismiss if the employee’s actions in carrying out the activity were unreasonable, malicious or irrelevant to the activity itself.
The ET had been wrong in law to conclude that the dismissal was for other than the carrying out of health and safety activities.
The upset and friction which formed the basis of dismissal resulted from S’s diligent performance of his designated health and safety duties. He was doing what he was instructed to do and had not exceeded the scope of his work.
The conduct and attitude matters related to S, as stated by the employer, might have amounted to the type of behaviour which could entitle an employer properly to treat those as the reason for dismissal, rather than the health and safety activities. But the ET had found that the allegations were exaggerated, embellished or absurd.
It was not possible to draw a proper distinction between other employees’ reaction to the health and safety activities and the activities themselves. The employees’ reaction was a predictable and likely consequence when a new health and safety system was being introduced to an established workplace.
Carrying out health and safety activities may often be resisted or regarded as unwelcome by colleagues.
The mere fact of having a good track record in health and safety does not necessarily insulate an employer against finding that a dismissal in a particular case was for a reason connected to health and safety.
The matter was remitted to the ET to decide compensation issues.
This case illustrates the importance of employers communicating with workers so that they understand the scope of new health and safety rules and their implication. It is possible that if this had been done in the Sinclair case, legal proceedings would not have arisen.
The case is also an example of the significance of the protection afforded by s.100 of the Employment Rights Act 1996 and the readiness of courts to accept this significance.