Employee protection for designated health and safety activities

A recent EAT case of Sinclair v Trackwork Ltd dealt with an automatic unfair dismissal claim on the grounds of performing designated health and safety activities. It was held automatically unfair to dismiss someone for undertaking a designated health and safety activity unless their conduct was ‘wholly unreasonable, malicious or irrelevant’.

Sinclair was employed as a Track Maintenance Supervisor and was instructed to implement a new safety procedure. Trackwork Ltd did not tell anyone that Sinclair would be doing this and subsequently employees were upset with this process and complained about his "overcautious and somewhat zealous” approach. Shortly after, Sinclair was dismissed for causing upset and friction in the workplace, he subsequently brought a claim of automatic unfair dismissal under s100(1)(a) Employment Rights Act 1996.

The Employment Tribunal dismissed the claim stating that the reason for dismissal was the way in which Sinclair managed the health and safety and the procedure implementation as it demoralised the workforce.

Sinclair appealed to the EAT.

The EAT allowed the appeal and held that Sinclair had been automatically unfairly dismissed. It held that s100(1)(a) intended to protect employees against the natural resistance from other employees regarding the activities as unwelcome. There is a broad protection for employees carrying out designated health and safety activities on the company’s behalf. The EAT detailed that unless an employee’s manner in which they carried out the health and safety activities was ‘wholly unreasonable, malicious or irrelevant’, the employee was unlikely to lose the protection given to them by s100(1)(a). Instead in this case, Sinclair had carried out his duties diligently which had caused relations to sour, this could not be separated from the protection of carrying out health and safety activities.

This case helps highlight how much protection s100(1)(a) gives employees carrying out health and safety activities on behalf of their employer. It is useful to consider the way in which an employee carries out these duties should a decision need to be made on dismissing the employee. It is key to air on the side of caution.

Please get in touch with one of our Employment team should you have any queries on employees carrying out health and safety activities.