The EAT has held that the dismissal of an employee for causing “upset and friction” when implementing a new safety procedure was automatically unfair.
The facts
Mr Sinclair was employed by Trackwork Limited as a Track Maintenance Supervisor. He was tasked with implementing a new safety procedure. However, Trackwork Limited did not tell its employees that Mr Sinclair had been mandated to do this, nor did it communicate to Mr Sinclair its wish to see a “slow change”. Mr Sinclair set about implementing the new procedure with “all due diligence”. The new system represented a change in ways of working, and his attempts to implement the change created friction. The workforce became unhappy, perceiving him to be “overcautious” and “somewhat zealous” in his approach.
Trackwork Limited decided to dismiss Mr Sinclair because of the upset and friction caused by his attempt to implement the new process. Mr Sinclair claimed, under section 100 of the Employment Rights Act 1996, that he had been automatically unfairly dismissed because the reason for the dismissal was that he was carrying out health and safety activities.
The employment tribunal, while stating that it had “a great deal of sympathy” for Mr Sinclair who was the victim of poor management, dismissed his claim. They found that it was the way in which Mr Sinclair had carried out his health and safety activities, causing a loyal workforce to be demoralised, rather than the health and safety activities themselves, that had caused his dismissal.
Mr Sinclair appealed to the EAT, which allowed his appeal. It held that the legislation offered broad protection to employees carrying out health and safety activities on their employer’s behalf. The EAT noted that employees carrying out health and safety activities will often be resisted or regarded negatively by colleagues. Section 100 provides a broad set of protections to employees undertaking health and safety activities and is intended to protect employees from this “mischief”. It would undermine the protection if an employer could fairly dismiss an employee by maintaining that the upset caused by legitimate health and safety activities are unrelated to the activities themselves. There may be cases where an employee’s conduct can be separated from the carrying out of the activities (for example, if the conduct is unreasonable, malicious, or irrelevant to the task in hand), but this was not one of those cases.
The EAT substituted a finding of automatically unfair dismissal and remitted the case to the employment tribunal to consider remedy.
What does this mean for employers?
It will be difficult to persuade a tribunal to separate the way in which an employee performs their health and safety activities from the actual performance of the activities. Even if the employee is heavy handed or abrasive in carrying out health and safety activities, employers should be very cautious in subjecting them to any detriment, particularly dismissal given the broad protections afforded respectively by sections 44 and 100 of the Employment Rights Act 1996.
