Section 100 dismissals a risk with ‘zealous’ Covid measures

Health and safety dismissals – section 100 ERA 1996

Are you one of the many businesses introducing new health and safety Covid measures as staff return to work? If so, then it is worth taking notice of a decision which has been handed down by the EAT and which makes a number of salient points around the communication of those changes and the way they are carried out. It is the case of Sinclair and is the latest of a stream of cases on section 100 of the Employment Rights Act - unfair dismissal on health and safety grounds. So, because of the pandemic and the pressure on employers to make the workplace safe, increasingly employees are relying on this provision. We will come onto the practical points to take from this case shortly, but first the background.

This relates to the dismissal of a manager, Mr Sinclair, who had been instructed by his employer to carrying out various health and safety measures, but he did so an over-zealous fashion and upset a number of employees who complained. He was disciplined and, ultimately dismissed on conduct grounds, because of the way he carried out the instructions. He brought a claim under section 100 arguing he was dismissed on health and safety grounds. The tribunal dismissed his claim finding that, although he had only been doing what he was instructed to do, the reason for dismissal was down to the fact that a loyal workforce had become demoralised by the way he was carrying out the changes. On appeal the EAT said the tribunal had got that wrong because that approach would wholly undermine that section 100 protection if an employer could rely, as a reason for dismissal, on the upset caused by the manner in which legitimate health and safety activity is carried out. The only time conduct would trump that is when the instruction is carried out in a malicious or extraneous way that was irrelevant to the task in hand, but that did not happen in this case.

So, clearly this is very much ‘on-point’ given the current focus on health and safety and a heightened level of anxiety generally around the return to work. We have been advising on this throughout the pandemic so let’s hear from one the lawyers helping clients. Aisleen Pugh joined me by video link to discuss it and I put it to her that this is a tricky issue to manage, and HR has a key role:

Aisleen Pugh: “That's absolutely right. There is no doubt that wholesale changes to ways of working in response to the coronavirus pandemic, and more widely, do unfortunately cause friction and upset within the workforce and they can amount to significant changes to people's working and personal lives and cause disruption. So, it is inevitable, unfortunately, that we will often see pushback or dissatisfaction with these types of workplace changes. It is critical that HR and, indeed, management play a role in advance warning, information, consultation, about the proposed changes in order to ‘soft land’ the messaging, be mindful of the employee relations risk and, I guess, be alive to the fact that these activities are necessary, they are they are mandated by a company, and therefore it is in everybody's interest that those changes are implemented with minimum disruption to the workforce and minimum upset caused. In addition to that, of course, there is the very real risk of detrimental dismissal, automatic unfair dismissal-related claims, where an employee who has been mandated with carrying out these types of activities and has done so in accordance with the direction from the company is then subject to a detriment, or indeed a dismissal as a result, which can lead to employment related liabilities on an employer.”

Joe Glavina: “Can I ask you the situation where an employer is considering dismissal, notwithstanding the section 100 protection So, they are confident they can ‘de-couple’ the behaviour from the health and safety activities. How do they demonstrate that at tribunal if they are challenged?”

Aisleen Pugh: “So, one of the key steps to take in in considering a dismissal, particularly in circumstances where there are concerns that there may be an ability for an employee to argue that they've suffered an automatic unfair dismissal in relation to carrying out health and safety activities and or suffered a detriment as a result of carrying out those activities. It is absolutely crucial that the decision making processes about that are carefully documented and, indeed, that the decision making processes themselves are very clear and meticulous in identifying the reasons why an employer says that a dismissal may be potentially fair, so looking for example at conduct as a potentially fair reason, and carrying out a sufficient investigation and conducting a disciplinary or appropriate dismissal procedure as you ordinarily would to identify and, indeed, evidence in the event that tribunal proceedings were issued on the back of any action taken by an employer, to evidence the fact that any dismissal or actions taken which are arguably detrimental to an employee can be clearly de-linked or decoupled from any health and safety related activities that they were carrying out, or, indeed, any health and safety activities that are carrying out in accordance with their mandate, because what the Sinclair case clearly establishes is that where people are carrying out health and safety activities in a manner which is unreasonable or malicious, but not overzealous, that that may well be good enough reason to remove the automatic unfair dismissal protections which the employment legislation provides to those with no qualifying service in these in these situations.”

The events of that case, Sinclair v Trackwork, date back to 2018, so long before the pandemic, but nonetheless it sends an important message about the risks around section 100, especially with employees now returning to the workplace and employers stepping up their health and safety measures. If you would like to read the judgement for yourself, you can – we have put a link to it in the transcript of this programme.

LINKS
- Link to case report:  Sinclair v Trackwork Ltd (EAT)