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In brief

A supervisor tasked with implementing a safe system of work had been automatically unfairly dismissed for the friction generated with colleagues by his “over-zealous” implementation of the system and the demoralising effect upon the workforce. The reaction to his health and safety activities could not be properly separated from the activities themselves. 


Key takeaways

  • In this case, the difficulty arose because of how the implementation of the safe system of work had been managed by the employer. The employee was tasked with implementing the system but had not been advised that a “slow change” was needed. Management had not informed the workforce that a change was being implemented so it caused friction. 
  • A clear communication strategy may have avoided the workforce becoming demoralised by health and safety changes and made implementation easier. Employers are likely to encounter this issue more frequently as plans for return to work are put in place and employees may have different expectations as to what the new working environment will look like.
  • The decision is also a reminder that, in common with whistleblowing cases, it is hard to defend a complaint of automatic unfair dismissal as a result of the way in which the employee went about their protected health and safety activities as opposed to the activities themselves. Employees implementing health and safety requirements are likely to encounter opposition as they may be challenging the status quo.   Employers should be cautious about reacting to that opposition too readily, save where the matters being raised by the employee are “malicious, untruthful or irrelevant.”

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In more detail

Mr. Sinclair was a track maintenance supervisor who was tasked with implementing a safe system of work procedure.  His employer did not tell other employees about Mr. Sinclair’s mandate. Nor did they inform Mr. Sinclair that they wanted “slow change.”

Mr. Sinclair’s implementation of the system “with all due diligence” caused friction with the workforce who raised concerns with management. The workforce was not aware of the need for change and thought Mr. Sinclair was over-cautious and over-zealous.

The employment tribunal accepted Trackwork’s arguments that Mr. Sinclair was dismissed for demoralising the workforce with “a heavy heart.”

The Employment Appeal Tribunal (EAT) overturned the tribunal’s decision and substituted a finding of automatic unfair dismissal. When deciding whether an employee had been automatically unfairly dismissed under s100(1)(a) Employment Rights Act 1996, a two stage test should be applied. Firstly, did the factual circumstances fall within that section: was the designated employee asked to carry out activities in connection with preventing risks to health and safety and did he carry out or propose to carry out such activities? Secondly, if those conditions were met, was the sole reason or principal reason for dismissal that the employee carried out or proposed to carry out those activities?

When looking at the second aspect of the test, i.e., the sole or principal reason for dismissal, the EAT drew on whistleblowing and health and safety case law. Conduct that was “wholly unreasonable, malicious or irrelevant” to the task in hand could mean that protection was lost. However, care had to be taken to ensure that the protection afforded to those carrying out health and safety activities was not diluted by artificial distinctions being drawn between those activities and the way in which they were carried out. 

In this case, the reason for Mr. Sinclair’s dismissal, i.e, the need to restore workplace relations, was a direct result of his health and safety activities. Mr. Sinclair had not carried out his activities in a malicious or extraneous way. Other aspects of his conduct had been rejected as being part of the reasons for his dismissal. The mere fact that Trackwork had a strong health and safety record could not insulate them from a finding of automatic unfair dismissal.

Click here to access the case.

Author

Annabel Mackay is a senior associate in the Baker McKenzie Employment Department with extensive experience of advising employers and employees on a range of complex employment issues. She has been ranked in Legal 500 and Chambers & Partners since 2015. Chambers & Partners 2019 report that clients describe Annabel as: "supremely impressive and technically brilliant while also being commercially astute and incredibly bright."

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