326: What if your employees don’t like the way your health and safety protocols are implemented?

In Sinclair v Trackwork Ltd, the EAT recently overturned an Employment Tribunal decision which had stated that it was not automatically unfair to dismiss an employee as a consequence of resistance by others to the way he introduced a new safety protocol.

Under the Employment Rights Act 1996 (ERA), it is automatically unfair to dismiss an employee for carrying out their designated health and safety duties (section 100(1)(a)). No qualifying period of service is necessary to bring this type of claim, and the usual cap on the compensatory award does not apply.

Mr Sinclair was employed by Trackwork Ltd as a Track Maintenance Supervisor. Although one of his duties at the company was to implement a new safety procedure, none of the employees he supervised were informed that this was part of his mandate. Such individuals became unhappy with the changes and raised their concerns with management, complaining that Mr Sinclair’s approach was overly cautious and zealous. Mr Sinclair was subsequently dismissed because of the upset and friction caused. He then brought a claim for automatic unfair dismissal, alleging that he had been dismissed for carrying out his designated health and safety duties.

The Employment Tribunal rejected Mr Sinclair’s claim, ruling that he was dismissed because his working relationships had soured, and because staff were becoming demoralised by the manner in which he was carrying out his health and safety duties. It held that, since he had not been dismissed for actually carrying out those duties, he was not protected under the health and safety provisions of the ERA.

However, on appeal, the EAT did not agree with this reasoning and substituted a finding of automatic unfair dismissal. The EAT held that section 100(1)(a) of the ERA is designed to give broad protection to employees carrying out health and safety activities on their employer’s behalf. This includes protection against the fact that carrying out health and safety activities will often be resisted and may cause upset. It went on to note that it was Mr Sinclair’s diligent work carrying out his health and safety duties that had caused relations to sour, and this was not severable from the duties themselves. The case was sent back to the Employment Tribunal to consider compensation.

The important point to note is that employees with designated health and safety duties are protected from dismissal in respect of the way in which they carry out those duties. Before taking any disciplinary or detrimental action against an employee who has health and safety duties, even where this is causing unrest amongst other staff, it is therefore vital to consider whether there is any link. However, protection is likely to be lost if an employee exceeds their mandate or carries out these designated activities in a malicious or unreasonable way. Employers should note that, unsurprisingly, there has been an increase in health and safety issues being raised in unfair dismissal claims since the start of the pandemic and so it is vital to consider issues like this at an early stage. It is similarly important to be aware that health and safety protection under the ERA is very broad and includes dismissals for raising health and safety issues as well as for taking steps to protect employees or other people from imminent danger.