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Is the 'manner' in which health and safety activities are carried out separable from the activity itself?

Employment Matters e-update – May 2021

Overview

The EAT has found that an employee dismissed for ‘causing upset and friction’ amongst work colleagues as a result of the way in which he was attempting to implement a new health and safety procedure, was unfairly dismissed by his employer

Sinclair v Trackwork Ltd  

Is the ‘manner’ in which health and safety activities are carried out separable from the activity itself?

Rarely, the Employment Appeal Tribunal (EAT) has held.

The Claimant, Mr Sinclair, was employed by Trackwork Ltd as a track maintenance supervisor and was asked to assist with the introduction of a new safety at work regime.

Mr Sinclair’s colleagues were not told that he has been asked to do this, and complained about Mr Sinclair being ‘overcautious and somewhat zealous’.  As a result of these complaints and the unrest within the workforce, Trackwork Ltd dismissed Mr Sinclair.

Mr Sinclair brought a claim of automatic unfair dismissal under s.100(1)(a) of the Employment Rights Act 1996.  Under this section, a dismissal will automatically be unfair when the reason for the dismissal is that the employee has carried out health and safety activities, having been designated to do so.

The Employment Tribunal dismissed Mr Sinclair’s claim holding that his dismissal was not as a result of his carrying out of the health and safety activities but rather because of the unrest his approach had caused. Mr Sinclair appealed to the EAT.

The EAT decision

The appeal was allowed.

In reaching this decision, the EAT considered that the protection afforded to those carrying out health and safety activities is broad, and that the way in which someone carries out designated health and safety activities will not generally provide grounds for removing the protection; unless the individual’s conduct in doing so is unreasonable, malicious or irrelevant to the task at hand.

The EAT did not consider that Mr Sinclair’s conduct was unreasonable or malicious, but rather found that he was diligently carrying out task he was asked to do.  The complaints from other employees were as a result of Trackwork’s poor handling of the situation, and not because of Mr Sinclair’s behaviour.

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