Dismissal for health and safety 'friction' automatically unfair

Is it automatically unfair to dismiss an employee for having implemented health and safety changes, even when it causes ‘friction’ amongst their colleagues?

The Employment Appeal Tribunal (EAT) considered this recently in Sinclair v Trackwork Limited. This case concerned s100 (1)(a) of the Employment Rights Act 1996, which makes it automatically unfair to dismiss an employee for carrying out health and safety activities.

Background

Section 100(1)(a) of the Employment Rights Act 1996 (ERA) (article 132 (1)(a) of the Employment Rights (Northern Ireland) Order 1996 providing the equivalent provision in Northern Ireland) protects employees by regarding a dismissed employee as having been unfairly dismissed where the reason, or principal reason, for the dismissal is that the employee carried out activities connected to health and safety risks, having been asked to do so by their employer.

In the recent case of Sinclair v Trackwork Limited, the Employment Appeal Tribunal (EAT) acknowledged that implementing health and safety changes can cause 'upset and friction' amongst the workforce.

The EAT said that s100(1)(a) ERA should be interpreted broadly, to protect employees from being dismissed for upset and friction resulting from the implementation of health and safety measures, as well as protecting employees from dismissal for health and safety reasons themselves.

Facts

The Claimant, Mr Sinclair, was instructed by his employer to implement a new health and safety procedure.

Whilst Mr Sinclair’s manager wished to see a ‘slow change’, he never communicated this desire to Mr Sinclair. Additionally, the employer never informed Mr Sinclair’s colleagues about the changes Mr Sinclair had been tasked to implement.

The employer’s workforce became unhappy with the new system Mr Sinclair attempted to implement, which created ‘friction’ amongst the workforce and led to Mr Sinclair’s’ colleagues raising concerns with their management. As far as the unhappy employees were concerned, it was ‘business as usual’ and Mr Sinclair’s efforts to implement the health and safety strategy were a disruption to this.

Mr Sinclair was dismissed by his employer due to ‘the upset and friction’ caused by his attempts to implement the health and safety changes. Mr Sinclair brought an employment tribunal claim for automatically unfair dismissal under s100(1)(a) ERA, as he believed the reason or principal reason for his dismissal was because he was designated to carry out health and safety changes and he was dismissed for doing so. Mr Sinclair also claimed that he had made a protected disclosure to his employer.

The employment tribunal rejected Mr Sinclair’s s100 (1)(a) ERA claim. The tribunal decided that although Mr Sinclair had done what was instructed of him, the employer dismissed him due to the ‘over zealous’ manner in which he conducted the health and safety activities. The tribunal found that this caused relations in the workplace to sour and upset a loyal workforce. It was the tribunal’s opinion that the complaints were not about the health and safety changes, they were about Mr Sinclair’s methodology. Therefore, the dismissal was fair and Mr Sinclair was not protected by s100 (1)(a) ERA.

Mr Sinclair appealed.

Decision

The EAT upheld Mr Sinclair’s appeal. It found that Mr Sinclair’s dismissal was automatically unfair for health and safety reasons; not for the way in which he implemented the health and safety measures.

The EAT made their decision based on the following.

• The dismissal was as a direct result of Mr Sinclair having carried out the health and safety activities as a designated employee. Relations amongst the workforce had soured as a consequence of Mr Sinclair ‘diligently carrying out his duties’.
• Mr Sinclair merely did what he was instructed to do and did so in a manner which did not exceed the terms of his mandate in implementing the changes. It was Mr Sinclair’s colleagues’ perception of the activities as being over-zealous that caused friction and soured relations amongst the workforce. Section 100(1)(a) ERA seeks to guard designated employees from circumstances in which carrying out health and safety activities can be met with resistance, or regarded as unwelcome, from their colleagues. This protection would be wholly undermined if an employer could rely on the upset caused by legitimately implemented health and safety changes as being a reason for dismissal that was unrelated to the changes themselves.
• Mr Sinclair did not carry out his activities in a malicious or extraneous way. Therefore he should not have been deprived of protection under section 100 (1)(a).

Ultimately, the EAT concluded that the health and safety activities Mr Sinclair was tasked to perform were the cause for the dismissal, not the friction and upset caused by Mr Sinclair having carried out the activities.

Comment

As workplaces adapt to the health and safety challenges which come with re-opening during the Covid-19 pandemic, this case will be of particular interest for employers.

Whilst it is important to clearly communicate health and safety changes, and obtain as much employee buy-in as possible, there is always the potential for push-back against colleagues who are tasked with implementing potentially unpopular or controversial changes. 

In these circumstances, employers will need to act with caution before dismissing an employee in the context of health and safety measures – whether linked to the pandemic or otherwise.

Employment tribunals will take a broad approach towards the scope of the special protections for health and safety dismissals.  Tribunals will not draw a distinction between dismissals for workplace friction caused by health and safety measures, and dismissals linked to the health and safety measures themselves.

However, the position may be different if an employee carries out health and safety duties in a malicious or unreasonable manner. In those circumstances, the special protections under section 100(1)(a) ERA/ article 132 (1)(a)ERO may not apply.

In a separate but related development, note that from 31 May 2021 health and safety detriment protection will be extended to include workers. Currently, this protection only applies to employees. Note that this development does not extend to Northern Ireland which will retain the health and safety detriment protection for employees only. 

Link to case transcript: https://www.bailii.org/uk/cases/UKEAT/2020/0129_20_0112.html

Contributors: Natasha Whitham and Sarah Maddock

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.