Was a dismissal for causing ‘friction’ when implementing health and safety rules unfair?

As an increasing number of employees return to their usual workplaces following lockdown, there will be a focus upon establishing health and safety rules to limit the risk of Covid-19 transmission. Some employees may resist additional rules or may challenge the efficacy of measures. Although the case below does not concern Covid-19 safety rules, it involves an employee who was dismissed for the way he implemented new health and safety measures. The outcome is therefore relevant to employers planning to roll-out new health and safety rules.

The case

In the case of Sinclair v Trackwork Ltd, Mr Sinclair began his employment as a Track Maintenance Supervisor in October 2018. Trackwork Limited provides construction and engineering services to railway network providers.

Mr Sinclair was instructed to implement and supervise the carrying out of new safety procedures, but his colleagues were not told about this decision. The Maintenance Manager wanted a slow change, but this was not communicated to Mr Sinclair. Mr Sinclair’s colleagues complained about the way he implemented the new system, commenting on his perceived ‘over-cautious and zealous approach’ to management.

The employer dismissed Mr Sinclair in December 2018 due to the ‘upset and friction’ caused to their ‘loyal workforce’.

The law

Having worked less than 2 years with the employer, Mr Sinclair did not have sufficient length of service to bring a claim for ordinary unfair dismissal.

Mr Sinclair brought a claim in the Employment Tribunal under a law which permits any employee to make a claim where the ‘reason or principal reason’ for their dismissal is because they carried out activities ‘in connection with preventing or reducing risks to health and safety at work’, where their employer had ‘designated’ them to carry out those activities (section 100 (1)(a) Employment Rights Act, 1996).

At the Employment Tribunal

It was not disputed that Mr Sinclair was asked by his employer to carry out activities in connection with preventing risks to health and safety and that he had carried out those activities. The Tribunal had to consider whether the sole or principal reason for dismissal, was that Mr Sinclair carried out those activities.

Mr Sinclair reasoned that where an employer dismisses an employee because they were the subject of ‘embellished or exaggerated accounts of misconduct’ from colleagues while carrying out health and safety duties, then the employer is effectively dismissing the employee for carrying out health and safety duties.

The Tribunal needed to decide on the facts whether the dismissal was due to Mr Sinclair justifiably carrying out designated health and safety duties, or whether it was because he caused friction with colleagues.

The Tribunal concluded that the dismissal was due to the manner in which Mr Sinclair carried out his duties, and the demoralising effect it had on his colleagues. Mr Sinclair appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal’s decision

The Employment Appeal Tribunal overturned the Employment Tribunal’s decision.

The Employment Appeal Tribunal explained that section 100(1)(a) gives broad protection to employees who carry out health and safety activities at their employer’s request. Carrying out these activities will often be met with resistance from colleagues, but it would undermine the protection that the law affords to employees if an employer could rely upon the upset caused by legitimate activities as a reason for dismissal that was unrelated to the activity.

The Employment Appeal Tribunal said that only where an employee’s conduct was ‘wholly unreasonable, malicious or irrelevant to the task in hand’, could protection potentially be lost.

The Employment Appeal Tribunal highlighted the context that this employer, which was operating in a ‘health and safety critical environment’, had an impeccable health and safety record and was obligated to adhere to exacting health and safety standards in order to operate. Mr Sinclair was not asked to alter his approach when he reported his colleagues’ resistance to management.

The Employment Appeal Tribunal decided Mr Sinclair had diligently carried out his duties, and his colleagues’ perception that he was carrying out his duties in an ‘over-zealous way’ was due to the employer’s mismanagement of the situation. The Employment Appeal Tribunal found that the dismissal had been unfair.

Conclusion

This case demonstrates the importance of employers clearly communicating how health and safety changes will be implemented. Employers should fully inform employees who are requested to give colleagues instructions about new processes, the approach they are expected to take and how to respond to challenge.

If employees are not kept updated on changes to health and safety measures, the employer could face legal claims if the health and safety of employees is not adequately protected, due to ambiguous instructions, or if discontent amongst employees leads to dismissals/resignations. It is also much more difficult to hold employees accountable for breaches of safety rules if instructions were not clear from the outset.

We can discuss the implementation of policies and training with you, to help minimise the risk of legal claims and unnecessary friction in the workplace.