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  • Writer's pictureRobert Spicer

Health and safety and automatically unfair dismissal

UNFAIR DISMISSAL: Automatically unfair: Health and safety activities In the recent case of Sinclair v Trackwork Ltd, the Employment Appeal Tribunal (EAT) gave guidance on these issues. The facts, in summary, were that S, a track maintenance supervisor employed by T Ltd, was instructed to implement a new health and safety procedure. T Ltd did not inform its other employees about S’s task. The other employees raised concerns about S’s actions. They complained about his zealous and overcautious approach. S was dismissed because of the upset and friction caused by his actions. He complained of automatic unfair dismissal under section 100 of the Employment Rights Act 1996. This states, in outline, that a dismissal is automatically unfair where the 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. The employment tribunal dismissed the complaint. It found that 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. T Ltd appealed to the EAT. The appeal was allowed. The EAT 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 to reason or the principal reason for the dismissal. * 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. * 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.

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