• Adil Khan

Safety Procedures and Grounds for Dismissal - What Employers Should Know

During the coronavirus pandemic, the topic of workplace health and safety has, for obvious reasons, assumed even more relevance for both employers and employees.

A recent Employment Appeal Tribunal (EAT) case has drawn attention to the way in which safety procedures are introduced into a workplace and whether the way this happens can ever be grounds for dismissal. The case was that of Sinclair v. Trackwork Ltd.

What happened?

Sinclair worked for Trackwork Ltd as a track maintenance supervisor. Trackwork gave him the job of putting into practice the Trackwork Safe System of Work procedure.

However, for some unknown reason, Trackwork did not tell his colleagues about this, and nor did they tell Sinclair that they wanted the changes introduced slowly. Unaware of this important fact, Sinclair pressed ahead with the implementation of the new system “with all due diligence” and this caused problems with the workforce as the new system represented a change from what Trackwork’s employees had been accustomed to. As a result, employees raised their concerns with management. His colleagues, being unaware of the need for change, interpreted his actions as being both over-cautious and over-zealous. He was dismissed for the “upset” and “friction” that his activities had caused.

Sinclair claimed automatic unfair dismissal under Section 100 Employment Rights Act 1996 (ERA 1996). However, at the tribunal hearing, Trackwork’s justification for Sinclair’s dismissal was that he had demoralised the workforce and that the dismissal was an attempt to restore workplace relations. The justification was accepted by the tribunal, albeit – as the judge said - “with a heavy heart”. Sinclair appealed the tribunal’s decision to the EAT.

What does the law say?

Section 100 of the Employment Rights Act 1996 says:

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—

(a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, …

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”

What did the EAT say?

The EAT said that the tribunal had made a number of errors in law. The matters that the tribunal had identified as reasons for dismissal were the direct result of Sinclair carrying out health and safety activities as a designated employee. The diligent way in which he had carried out those duties had caused workplace relations to sour, not for some other reason “which might have intervened in the chain of causation between carrying out the…activities and his dismissal”.

The EAT said that Section 100 ERA 1996 was sufficiently broad in scope that it would offer protection for both an employee’s duties and the way in which they were carried out. The two, it said, were not separate as far as the ERA 1996 was concerned. Only where it could be shown that the conduct of an employee was “wholly unreasonable, malicious or irrelevant to the task in hand” would Section 100 ERA 1996 protection no longer apply. In the case of Sinclair, this was clearly not the case.

Implications of the EAT decision

It is worth noting what the EAT said about the attitudes and views of colleagues towards an employee who is, at the behest of their employer, carrying out health and safety duties. Depending on the nature of the workplace and the current attitude towards safety, new procedures or activities might be regarded as unwelcome, onerous or even affect the commitment and morale of the workforce as a whole, but – regardless of the way in which those activities are implemented - the ERA 1996 still extends its protection to the person who is carrying out health and safety duties.

The post-pandemic workplace will be significantly different from before, with far more emphasis being placed on hygiene, preventative measures and revised procedures to ensure no fresh outbreaks occur. Indeed, it may be the case that legislation leaves employers with little or no choice in how the workplace will be run: witness remarks by government ministers on the possibility of compulsory vaccination for workers in the care industry. Human nature being what it is, there will be a spectrum of attitudes towards any health and safety measures implemented. Some will embrace them, recognising the need, while others may chafe at the restrictions imposed and seek to subvert them – or those whose job it is to implement them. This will lead to friction, of course – but this case has shown that the law is very much on the side of employees carrying out legitimate health and safety activities.

What should employers bear in mind?

In the case of Sinclair, the problems started because of the way that his employer implemented the new system of work. This could, of course, have been avoided by a clear communication strategy. As pandemic restrictions ease and employees return to the workplace, the issue of safety measures will become more relevant. Employees may have different views on what a post-pandemic workplace should be and how safety can be ensured. A clear announcement from management will serve to remind everyone about what procedures will be implemented and the degree to which disagreements will be listened to.

By implication, new systems of work, whatever the reason for their introduction, upend the status quo and there will be push-back; therefore, unless the opposition is in relation to something wholly or egregiously malicious or deceitful, it should be taken in the context of the change itself.