Automatic unfair dismissal: designation to perform health and safety functions

Castano v London General Transport Services Ltd

For an employee to have been ‘designated’ by their employer to carry out health and safety activities, he or she must have been selected by the employer to carry out specific activities in connection with preventing or reducing risks to health and safety at work, over and above their ordinary job duties.

The law accords employees with health and safety roles in the workplace various protections. Among them is the right not to be subjected to any detriment or to be dismissed on the ground that he or she carried out (or proposed to carry out) any health and safety activities for which he or she is designated by their employer (s. 44). No qualifying service is needed to benefit from this and a dismissal for such a reason is automatically unfair (s. 100).

Background

Mr Castano worked as a bus driver. He’d been employed for less than two years when he was dismissed. He brought various tribunal claims, including that he was subjected to detriment and/or had been dismissed for health and safety reasons (H&S), contrary to s. 44 and s. 100. In particular, he alleged that he’d raised H&S concerns with managers and made complaints about a specific controller. He claimed protection under s. 44 and s. 100 because he had general health and safety duties towards his passengers (because he held a PCV licence) and because he was in effect the H&S rep for his workplace (that being, he argued, the bus route he was required to drive). A tribunal struck out these claims as having no reasonable prospect of success and Mr Castano appealed.

EAT decision

The appeal was dismissed.

While Mr Castano’s contract did contain various H&S provisions, these simply imposed general H&S obligations in relation to the workplace – they did not designate an employee working to those conditions as carrying out activities in connection with preventing or reducing risks to H&S. Additionally, Mr Castano’s place of work was clearly the depot at which he was based and not the route which he drove.

The fact that bus drivers also had some H&S obligations as part of their duties didn’t mean they’d been designated to carry out a specific role. If Mr Castano’s argument was correct it would mean that all the employer’s drivers would have been designated for the purposes of s. 44 – which they plainly were not.

The protections in the statute are directed towards a situation in which an employee has been designated, over and above their ordinary job duties, to carry out specific activities in connection with preventing or reducing risks to H&S – essentially a H&S officer’s function. An employee doing a job in which he or she must exercise some responsibility to care of their own H&S – and that of others – is not the same thing.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0150_19_2910.html

Comment

Mr Castano’s arguments, although arguably ingenious, were fundamentally misconceived and the tribunal and EAT had little difficulty in dismissing them. The statutory protections were always aimed at those carrying out a classic H&S officer function – and not to benefit those with less than two years’ service to get a tribunal claim off the ground.