Protection for employees involved in health and safety activities

Protection for employees involved in health and safety activities

How are the Courts approaching potential delay of proceedings amidst the coronavirus pandemic?

In the recent case of Mr C Sinclair v Trackwork Ltd, the Employment Appeal Tribunal (the EAT) found that an employee’s dismissal, due to the friction caused amongst his colleagues by his implementation of a new health and safety procedure, was automatically unfair.

The case is a useful reminder to employers about the protections given to employees under the Employment Rights Act 1996 (ERA) in relation to health and safety activities.

Background

Mr Sinclair was employed by Trackwork Ltd (Trackwork) as a Track Maintenance Supervisor. As part of his role, he was asked to implement a new health and safety procedure.

This new procedure represented a marked change from the previous measures that Trackwork’s employees had become accustomed to. Trackwork had not informed its other employees about the work that Mr Sinclair had been asked to carry out. Mr Sinclair’s colleagues became increasingly unhappy about the work he was doing, and raised complaints about him, perceiving his actions to be overly zealous.

In response to the complaints made, Trackwork dismissed Mr Sinclair on the basis that he had caused “upset” and “friction” amongst its workforce.

Mr Sinclair brought a claim in the Employment Tribunal for automatic unfair dismissal under section 100(1)(a) of ERA. This section of ERA provides that the dismissal of an employee due to the fact that they are carrying out health and safety activities at the request of their employer will be automatically unfair. Mr Sinclair therefore claimed that his dismissal was automatically unfair as he had simply implemented the new health and safety procedure that Trackwork had asked him to.

Decision

At the first instance, the Employment Tribunal found in favour of Trackwork’s reasoning for dismissing Mr Sinclair. It was not Mr Sinclair implementing a new health and safety procedure which led to his dismissal. It was due to his management of the new procedure which demoralised its employees. He had not integrated with the workforce when doing so and he had caused personality clashes.

Mr Sinclair appealed the decision and the case was referred to the EAT.

The EAT allowed Mr Sinclair’s appeal, finding that his dismissal fell within the protections of section 100(1)(a) and was, therefore, automatically unfair. The EAT found that Mr Sinclair had not diverged from the instructions given to him by Trackwork, and his work to implement the new health and safety procedure was not malicious or irrelevant to the task requested of him. It also found that, as a matter of causation, the fact that Mr Sinclair’s method of implementation of the health and safety procedure had caused friction was not separable from the fact that such feelings arose due to him carrying out a health and safety activity, as instructed to do so by Trackwork.

In its judgment, the EAT drew attention to the fact that section 100(1)(a) ERA seeks to protect employees against the fact that health and safety activities will be often be resisted by other colleagues, and therefore to allow an employer to rely on any upset caused by a legitimate health and safety activity would totally undermine this protection.

Comment

This case highlights the legal protection given to employees in matters relating to health and safety under ERA. Employers should take extra care and legal advice when disciplining or dismissing employees involved in health and safety matters.

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