On 31 August 2021 the COVID-19 right-to-work concession allowing employers to carry out...
Employment Law Cases
Automatically unfair health and safety dismissals
Sinclair v Trackwork Ltd
An employee dismissed because of the friction caused in the workplace by the way he’d instituted a new health and safety regime had been automatically unfairly dismissed.
Mr Sinclair, who worked for T Ltd as a track maintenance supervisor, was tasked with introducing a new safe system of work regime – but T Ltd didn’t tell Mr Sinclair’s colleagues that he had this mandate. Complaints began about the way in which Mr Sinclair was introducing the regime, specifically his ‘overcautious and somewhat zealous’ approach. Because of the upset caused among the workforce, Mr Sinclair was dismissed. He brought a tribunal claim of automatic unfair dismissal under s. 100(1)(a) of the Employment Rights Act 1996 which covers dismissal where the reason is that an employee has carried out health and safety activities having been designated to do so. The tribunal dismissed his complaint; his dismissal wasn’t down to the H&S activities but rather was because of the upset his approach to implementing the new regime had caused. Mr Sinclair appealed.
The appeal was allowed.
Having reviewed the applicable case law, the EAT held that the protection afforded to those carrying out H&S activities under s. 100 is broad and that the way someone so designated carries out such activities will not readily provide grounds for removing such protection. However, conduct that is wholly unreasonable, malicious, or irrelevant to the task in hand could mean that the employee loses such protection. Mr Sinclair’s conduct did not fall into that category – he was diligently carrying out the task set him and the upset among the workforce resulted from the employer’s mismanagement of the situation and of everyone’s expectations, not from any malice on the part of Mr Sinclair.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0129_20_0112.html
This decision highlights the broad nature of the protection afforded to those designated to carry out H&S activities. As the judge pointed out ‘the mischief which the protection afforded to employees by s. 100(1)(a) seeks to guard against includes the fact that carrying out such activities will often be resisted, or regarded as unwelcome, by other colleagues. It would wholly undermine that protection if an employer could rely upon the upset caused by legitimate health and safety activity as being a reason for dismissal that was unrelated to the activity itself’.