Case law update

Health and safety used to be a minority sport but it's now on everyone's radar. Not just that all businesses have suddenly had to engage with government guidance on occupational safety, from COVID-secure workplaces and home risk assessments to mental health audits, it's also that the more obscure provisions of the Employment Rights Act 1996 are coming out of the woodwork. 

Facts

Take the case of Sinclair v Trackwork Limited (UKEAT 0129/20). It perfectly illustrates how someone charged with carrying out health and safety activities can, for want of a better phrase, rub people up the wrong way. Mr Sinclair was employed as a track maintenance supervisor and was designated to carry out health and safety activities, implementing a track safety standard. He executed his duties diligently, many of his colleagues felt too much so. He encountered resentment over his zealousness and relationships with his colleagues broke down. His employer, noting that a loyal workforce had been demoralised by the way he had managed his duties, decided to dismiss Mr Sinclair in response to the 'friction' for what it characterised as a personality clash.

Decision

Mr Sinclair brought a claim for automatically unfair dismissal on health and safety grounds, under section 100 of the Employment Rights Act 1996. An employment tribunal found that the principal reason for his dismissal was not carrying out health and safety duties, it was the manner in which he had carried them out. Mr Sinclair appealed to the EAT who found that he had been automatically unfairly dismissed. The EAT indicated that the fact of carrying out his health and safety duties was not properly separable from the manner in which he had carried them out. It would undermine the protection offered by this provision if an employer could easily rely on this distinction. The EAT provided clear guidance that:

• the scope of the protection afforded by s100(1) of the 1996 Act is broad
• activities carried out pursuant to a designation under s.100 will be protected and the manner in which such activities are undertaken will not readily provide grounds for removing that protection
• however, conduct that is, for example, wholly unreasonable, malicious or irrelevant to the task in hand could mean that the employee loses the protection. 

Why the case matters

It is not difficult to imagine how such a scenario might play out in the context of COVID-secure guidelines, particularly as people start returning to the office. There is scope for plenty of friction between those charged with implementing the guidelines and those on the receiving end of them. The focus of the dispute might even be 'under-zealousness' or a difference of opinion about whether the person is correctly laying down the guidelines. 

Employers could avoid some of the mistakes made in the Sinclair case by:

• making clear to the workforce who has been charged with carrying out health and safety duties and, if there is to be a disruption to business as usual, explaining this to staff
• expressing support for the health and safety initiative and the person conducting it
• providing a mechanism for staff to express concerns
• intervening, should that become necessary, at an early stage, to avoid a breakdown in relationships.  

As ever, a lot of heading off a dispute comes down to good communication.

This case stands in contrast to a recent case in the Employment Tribunal in which an employee was not automatically unfairly dismissed when he decided to stay away from work during the first national lockdown out of a generalised fear that his children would contract COVID from him being at greater risk in the workplace. Something more than a fear of the national situation would have been required to protect this individual, something particular to his work or workplace, or indeed his own vulnerabilities.