With COVID-19 projecting workplace health and safety further into the spotlight, the recent Employment Appeal Tribunal (EAT) decision in Sinclair v. Trackwork Ltd is of particular interest.
The case related to an automatically unfair dismissal claim made by an employee who had introduced new safety procedures in the workplace. A number of colleagues had subsequently complained about the “overzealous” approach adopted by the employee. In terms of section 100 of the Employment Rights Act 1996, a dismissal is automatically unfair if the principal reason for it is that an employee carries out health and safety activities, having been designated to do so by the employer. Interestingly, the case centred on the manner in which the employee implemented the health and safety procedure, not the procedure itself.
At first instance, the Employment Tribunal ruled in favour of the employer. It accepted that the reason for the dismissal was a loyal workforce had become demoralised by the way in which the employee was managing health and safety, which was not in line with the employee’s health and safety responsibilities.
The employee subsequently appealed to the EAT, which disagreed with the Tribunal’s approach. It considered the broad remit of the protection offered by section 100 in the context of the inevitable overlap between an employee’s duties and the manner in which they are executed. It held that, generally, the two issues were not separable – only in cases where it was clear that an employee’s behaviour was, for example, malicious, would the protection under section 100 be lost. However, this was not the case here.
Of particular note are the EAT’s comments regarding the opinions of colleagues in relation to an employee who carries out health and safety duties. It recognised that the carrying out of such activities will often be resisted or seen as unwelcome, but said it would wholly undermine the legislative protection offered if that in itself could be used as a justification for dismissal by an employer.
As employers continue to navigate their way out of the pandemic and many prepare for the post-pandemic workplace, health and safety considerations will be paramount. While there will inevitably be friction between colleagues in this regard from time to time, the wide protection afforded to those employees carrying out legitimate health and safety activities will, other than in exceptional cases, override any unpopularity or upset caused as a consequence.
