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What Every Manager Should Know About Health & Safety Related Dismissals

Summary: employers should avoid impulsive, unconsidered reactions where Health & Safety is involved. Interpretations of phrases may be much wider than initially perceived. Tips given on how to avoid expensive consequences and loss of prestige.

What every manager should know about Health & Safety related dismissals
Think of it: what would you do if you were facing a contentious situation with staff constantly raising Health & Safety issues; issues that you feel are time wasting or simply an attempt to avoid work?
You could rush to take action ... ...or you could look at what the law says.
We asked Ark consultant Paul Stoelker to look at what's reasonable and permissible when considering disciplinary action against staff on Health & Safety issues.
Many employers are unaware of additional legislative protection in employment law for whistleblowers or those who act in the interests of their own Health & Safety or that of others.
Unlike ordinary compensation which is capped at £63,000, Health & Safety claims are unlimited and therefore non-compliance can be expensive when tribunal decisions go against the employer.
Added to which, where legal proceedings are exposed in the media, adverse press can harm an employer's business.
The European Council Directive introduced in 1989 (89/391/EC) lays the ground groundwork for UK legislation: the Employment Rights Act 1996 (ERA) specifically sections 100 (1) and 105 (3), a brief overview of these provisions is detailed below.
Employees will be unfairly dismissed if their employer dismisses them or unfairly selects them for redundancy or subjects them to other detrimental treatment, because they.

• Carry out or propose to carry out activities which they are designated by their employer to carry out in connection with preventing or reducing risks to Health & Safety at work. (i.e. Health & Safety officer, fire warden, first aider etc)
• Perform or propose to perform any functions they have as official or employer acknowledged Health & Safety representative or committee members.
• Bring to the employer's attention, by 'reasonable means' and in absence of a representative or committee with whom it would be reasonably practicable for them to raise the matter, a concern about circumstances at work which they reasonably believe are harmful to Health & Safety.
• In the event of danger which they reasonably believe to be serious and imminent which they could not reasonably be expected to avert, leave or propose to leave the workplace or any dangerous part of it, or (while the danger persists) refuse to return.
• In circumstances of danger which they reasonably believe to be serious and imminent, take or propose to take appropriate steps to protect themselves and other persons from the danger.

Serious and imminent danger

Another key phrase from the legislation is 'serious and imminent' danger and this must be proved by the claimant as not being simply 'potentially present'.
A relevant piece of case law is 'ABC News v Gizbert 2006' which was heard by 'Employment Appeals Tribunal' (EAT).
A foreign correspondent employed by a contract which allowed him to pick and choose assignments could not prove his case when he complained that being sent to a war zone represented 'serious and imminent' danger.
He could not demonstrate any specific instances of danger that could be said to be imminent, and war zones are therefore only considered to be potentially dangerous. Added to which the correspondent had the choice of whether to take the assignment or not.
Conversely, in the case of 'Masiak v City Restaurant 1997' which was also heard by the EAT, a chef refused to cook chickens he believed were not fully defrosted and therefore not safe to serve to customers. The chef was dismissed and brought a claim using section 100 of the ERA.
The initial tribunal verdict stated that the reference to 'other persons' did not constitute the public and referred only to other employees. However the appeals tribunal upheld Mr Masiak's appeal, stating a broader meaning of 'other persons' which includes "the public".

Reasonable means

Another important phrase is the bringing of Health & Safety issues to an employer's attention by 'reasonable means'. In the case of 'Horton v Ikea 1998' Mr Horton reported a fire safety issue directly to the fire brigade rather than using a more direct means of communication with the employer. Mr Horton was dismissed for gross misconduct as a result. The employment tribunal rejected his unfair dismissal claim but the EAT reversed the decision stating that 'appropriate steps' may comprise alerting third parties such as the fire brigade. Although calling the fire brigade is unlikely to be considered 'reasonable steps' or 'appropriate', unless the danger is 'serious and imminent', employers should take note that the Employment Appeals Tribunal (EAT) can take a wide view of the phrases above in italics.

Insufficient information

In the case of 'Bushby v 1-2-1 Swimming 2006' Ms Bushby refused to supervise an under 5s children's pool party because she believed such a pool party could only be supervised by a qualified life guard which she was not. She was dismissed and the initial tribunal ruled against Ms Bushby because her assumption was erroneous and legislation confirms that lifeguards are not required in such circumstances. However, the EAT overturned this decision because the claimant demonstrated that her employer had led her to believe that her misunderstanding was correct and therefore Ms Bushby had been provided with insufficient information and the dismissal was accordingly unfair.

Serious & imminent danger

Finally, 'Harvest Press v McCaffrey 1999' highlights the scope of what may be considered 'serious & imminent' danger. McCaffrey was a machine operator who complained of intimidation by a colleague. When Mr McCaffrey tried to phone his line manager the colleague in question stood over him to the point that the Mr McCaffrey felt threatened and he went home to make the call to his employer. Mr McCaffrey refused to return to work until the colleague had been dismissed and the 'serious & imminent' danger was no longer present. The employer responded by dismissing Mr McCaffrey who was not interviewed regarding the incident. At the tribunal Harvest Press argued that 'serious & imminent' danger only refers to machinery and practises etc. However, the initial tribunal held that the phrase has a much wider meaning and the EAT agreed dismissing the employers appeal.

In conclusion: be considered and avoid knee-jerk reactions

It is clear from most of the decisions noted above that employers should avoid knee-jerk reactions where Health & Safety is involved. Interpretations of phrases may be much wider than initially perceived. Not only could the consequences be expensive, but the loss of prestige in a highly publicised case could also prove detrimental to any business. The following steps should be considered by employers:

• Take any Health & Safety complaint seriously and conduct an appropriate and proportionate investigation
• Introduce a Health & Safety complaints procedure and carefully log and respond to all complaints
• Train and instruct line managers to deal with potentially difficult situations
• Consider all the possibilities and ramifications before dismissing an employee where Health & Safety is concerned
• Develop procedures for 'serious and imminent' danger and ensure they are widely publicised, so that employees know how to react in foreseeable situations.

Paul Stoelker is a consultant with Ark Workplace Risk Ltd

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