In Sinclair v Trackwork Ltd, the EAT held that an employee dismissed because of ‘upset and friction’ caused to colleagues by the way in which he implemented a new safety procedure, was automatically unfairly dismissed under S.100(1)(a) of the Employment Rights Act 1996.
The background
Mr Sinclair was employed by Trackwork as a Track Maintenance Supervisor and was tasked with implementing a new safety procedure. Trackwork did not tell other employees about this, and concerns were raised by employees about what Mr Sinclair was trying to do. A particular complaint was in relation to Mr Sinclair’s ‘overcautious and somewhat zealous’ approach. In response to the employee complaints, Mr Sinclair was dismissed, citing the ‘upset and friction’ that his activities had caused.
Mr Sinclair brought an Employment Tribunal (ET) claim for automatically unfair dismissal under S.100(1)(a) Employment Rights Act 1996; a dismissal where the reason, or principal reason, is the employee carrying out health and safety (H&S) activities having been designated to do so.
The ET decision
The Tribunal, with a heavy heart, rejected Mr Sinclair’s claim. It found that Mr Sinclair had not been dismissed for carrying out H&S activities, contrary to S100(1)(a), but because a loyal workforce had become demoralised by the way in which he managed the H&S task and that because of that distinction, it was fair and reasonable for Trackwork to dismiss him.
Mr Sinclair then appealed to the Employment Appeal Tribunal (EAT).
The Appeal decision
The EAT upheld Mr Sinclair’s appeal. It recognised that the carrying out of H&S tasks and how those tasks are carried out are not readily severable. The EAT explained that an ET should consider whether an employee’s actions in carrying out H&S tasks were unreasonable, malicious, or unrelated to the task. Only in those circumstances would a dismissal be potentially fair. The EAT, applying that consideration to the current case, found that Mr Sinclair’s actions were not unreasonable, malicious nor were his actions unrelated to the task. For that reason, they found the dismissal to be unfair and remitted the case back to another ET to deal with an appropriate award.
What does this mean for employers?
It is not uncommon for employees to take exception to H&S processes, with some employees seeing H&S in the workplace as unnecessary ‘red tape’. For example, employers seeking to implement social distancing and hygiene H&S processes may be likely to receive increased resistance from certain employees.
To avoid potential disputes, employers may consider:
- ensuring that employees are aware of H&S representatives and their responsibilities;
- working with H&S representatives to ensure an agreed scope of work; and
- providing an informal process for raising concerns regarding H&S representatives.
Employers that are faced with disputes between H&S representatives and their colleagues should consider;
- the tasks and methods set by the H&S representative;
- the nature and basis of employee complaints; and
- importantly, whether the H&S representative’s actions were unreasonable, malicious or unrelated to the task.
Employers should always ensure that a fair procedure is followed and that proper and thorough investigation is carried out before dismissing an employee on any grounds.
Here to help
If you need help navigating H&S disputes and dismissals or need advice in relation to any of the issues raised in this article, you can contact a member of our Employment Team on 0161 941 4000 or email The Employment Team.