It is automatically unfair to dismiss an employee for carrying out designated health and safety activities. In Sinclair v Trackwork Ltd, the Employment Appeal Tribunal (EAT) held that the protection under the law includes the way those activities are carried out in addition to the activities themselves.
Basic facts
Mr Sinclair started work on 8 October 2018 with a specific brief to implement a new track safety procedure known as NR019 which he proceeded to do with “all due diligence”. However, the maintenance manager, Mr Airey, did not tell the other employees that he had a specific brief to implement NR019. Nor did Mr Airey tell Mr Sinclair that the new system should be implemented slowly.
The workforce, who perceived Mr Sinclair as being “somewhat zealous in his approach”, complained to their manager about him. He was dismissed on 11 December 2018 on the basis that he had caused upset and friction in his attempts to implement NR019.
Mr Sinclair lodged tribunal proceedings that his dismissal was automatically unfair under section 100(1)(a) of the Employment Rights Act 1996 (ERA) as the reason for his dismissal stemmed from the fact that he had carried out designated health and safety activities.
Tribunal decision
The tribunal held that it had to decide if Trackwork dismissed Mr Sinclair because he was carrying out his health and safety duties in “a health and safety critical environment” or because of the “zealous” approach he had taken and the upset this had caused.
Given Trackwork’s impeccable health and safety record, the tribunal concluded that it was “against the probabilities” that it would dismiss Mr Sinclair simply because he was carrying out his health and safety duties, even if this did generate complaints from other employees.
Instead, it held that Trackwork decided to dismiss him because of the upset that he was causing within the workforce. Although he was simply doing what he had been contracted to do (and the tribunal expressed its sympathy to Mr Sinclair on that score), the fact was that relations had soured and it was for this reason that Trackwork dismissed him.
EAT decision
According to the EAT, tribunals must follow a two-step process. First, they must determine whether the employee had been asked to carry out activities in connection with preventing risks to health and safety. If the answer to that question was in the affirmative, they then have to consider whether the main reason for dismissal was the consequence of carrying out those activities.
Upholding Mr Sinclair’s appeal, the EAT held that in circumstances where the health and safety related activities he carried out did not exceed his mandate and were not in any way malicious, untruthful or irrelevant, the tribunal should not have separated the way in which they had been carried out from the activities themselves.
As section 100(1)(a) recognises that carrying out health and safety activities might well be resisted by other employees, it would “wholly undermine that protection if an employer could rely upon the upset caused by legitimate health and safety activity as being a reason for dismissal that was unrelated to the activity itself.” He was, as the tribunal itself had found, merely doing what he had been instructed to do.
The EAT therefore substituted a finding that the dismissal was for an automatically unfair reason and remitted the matter to the tribunal to consider what remedy Mr Sinclair should receive.
Comment
The EAT’s decision is to be welcomed. The tribunal’s interpretation would have been a charter to set employees up for a fall by instructing them to make omelettes then sacking them for breaking eggs. Because the legal provisions are so similar this has application to both dismissal and detriment situations. It is definitely a victory for common sense.