Yes, we’ve all heard it before. “Health and safety has gone mad”. “It wasn’t like this in the good old days”. Newspapers have been making a killing off this furor for some time.
In this case, Mr. Sinclair was dismissed because of his “overzealous” actions in fulfilling his health and safety duties, alienating the rest of his colleagues. Trackwork felt that it simply couldn’t keep him on due to the relationship breaking down. The main issues complained of were that Mr. Sinclair was holding the company’s employees to a far higher standard than they were used to, and one which they didn’t actually need to comply with. This led to a confrontation which the Employment Tribunal delightfully described as “a heated discussion with exchanges in Anglo-Saxon terms between the parties”. This caused Trackwork to consider his conduct, culminating in his dismissal.
Mr. Sinclair subsequently brought a claim of automatic unfair dismissal to the employment tribunal (ET), alleging that the reason, or principal reason for his dismissal was because he carried out health and safety activities having been designated to do so by Trackwork. Automatic unfair dismissals are proscribed in statute and operate slightly differently to ordinary unfair dismissals. For one, there is no test of reasonableness of the employer’s actions, and there is usually no need to have the full 2 years’ service to qualify, as was the case for Mr. Sinclair.
Mr. Sinclair was initially unsuccessful in his ET claim. As part of its findings, the ET acknowledged that Mr. Sinclair had been undertaking his role, but that the reason for the dismissal was because of the friction between Mr. Sinclair with the other employees. His dismissal was therefore because of his methods, rather than his health and safety activities. Mr. Sinclair subsequently appealed to the EAT.
The EAT reviewed the case and came to the conclusion that the scope of protection for employees offered under the legislation was broad and “the manner in which such activities are undertaken will not readily provide grounds for removing that protection”, unless such activities are “wholly unreasonable, malicious or irrelevant to the task in hand”. Their determination was that Mr. Sinclair was diligently carrying out his duties, not being unreasonable, despite what his colleagues at the time thought. Because of this, the exception did not apply and the EAT determined that this was an automatic unfair dismissal, referring the matter back to the ET to decide on compensation.
What should you be doing now?
This case does not stop you from disciplining or dismissing employees with health and safety functions, but it does show that extra care needs to be taken in these circumstances, with proper processes followed. Where the issue is linked to their health and safety functions, take expert advice on managing the issue. In this case, the matter was not dealt with adequately because the employees were not told about Mr Sinclair’s remit, and Mr Sinclair was not adequately managed to sort out the friction which led to his dismissal.
Equally, employers should make themselves aware of the other statutory protections to ensure that similar situations do not occur.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.