Dismissal in Health and Safety Cases

Key points

§  It is inadmissible and automatically unfair for an employer to recruit or 'designate' an employee either as a safety officer or 'competent person' and then to dismiss or select that same employee for redundancy for carrying out (or proposing to carry out) his (or her) legitimate duties or functions (section 100, Employment Rights Act 1996).

Note

Regulation 7 of the Management of Health & Safety at Work Regulations 1999 requires an employer to 'appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions' (that is to say, under the Health & Safety at Work etc Act 1974 and statutes and regulations made under or saved by that Act).

§  The same rule applies if an employee is dismissed or selected for redundancy:

a.     for performing (or proposing to perform) his functions as an appointed safety representative or as a member of a safety committee (under the Safety Representatives & Safety Committees Regulations 1977);

b.    for performing (or proposing to perform) his functions as a representative of employee safety, having been elected as such by his or her fellow-employees (under the provisions of the Health & Safety (Consultation with Employees) Regulations 1996).

§  Any employee designated, appointed or elected to represent the interests of fellow-employees on issues affecting (or likely to affect) their health and safety at work, has the legal right to carry out his (or her) functions without being victimised or threatened with dismissal for doing so. If such a person is dismissed for that reason, he may pursue a complaint of unfair dismissal regardless of his (or her) age or length of service at the time his employment ended.

§  It is also automatically unfair to dismiss an employee or select him (or her) for redundancy:

a.     for bringing to the employer 's attention, by reasonable means, circumstances connected with his work that he reasonably believed to be harmful or potentially harmful to health or safety (in a situation in which there either is no safety representative or safety committee or representative of employee safety, or it was not reasonably practicable to contact or involve such persons);

b.    for leaving (or proposing to leave) his place of work in circumstances of danger (that he reasonably believed to be serious and imminent and that he could not reasonably have been expected to avert) or for refusing to return to that place of work or to the dangerous part of that place of work while the danger persisted;

c.     for taking (or proposing to take) appropriate steps to protect himself or other persons from a danger that he reasonably believed to be serious and imminent.

Whether the steps that an employee took (or proposed to take) under (c) above were appropriate is to be judged by all the circumstances including, in particular, his (or her) knowledge and the facilities and advice available to him at the material time (ibid. section 100(2)).

However, section 100(3) provides that a dismissal under (c) above will not be treated as having been unfair if the employer can satisfy an employment tribunal that it was (or would have been) so negligent of the employee to do what he (or she) did (or proposed to do) that any reasonable employer would have reacted by dismissing him.

Interim relief

§  Any safety officer, safety representative, 'competent' person, 'designated' person, or member of a safety committee bringing a complaint of unfair dismissal to an employment tribunal, in the circumstances described above, may apply to the tribunal for interim relief (briefly, a direction to the employer or former employer ordering him (or her) to reinstate or re-engage the employee pending the determination of the latter's complaint at the subsequent full tribunal hearing).

§  An application for interim relief must be submitted to an employment tribunal within seven days of the effective date of termination of the employee's contract of employment.

§  An employment tribunal must hear an application for interim relief as quickly as possible, but not before sending the employer a copy of the employee's application and giving the employer at least seven days' advance written notice of the date, time and place for the hearing.

§  If, on hearing the employee's application for interim relief, the tribunal agrees that there is a likelihood that the complaint will be upheld at a full tribunal hearing (which may not take place until several weeks or months later), it will order the employer to reinstate or re-engage the employee until the date set for the full hearing. If the employer fails to attend the interim hearing or has made it clear that he has no intention of reinstating or re-engaging the employee, the tribunal will make an order for the continuation of the employee's contract of employment. This means, in effect, that the employer must continue to pay the employee his or her normal wages or salary (less any reduction in respect of payments already made) until the employee's complaint is finally heard and decided. A failure to comply with the terms of a 'continuation order' will likewise attract an award of compensation which, if need be, will be enforced by the ordinary courts.

§  If the employee's complaint of unfair dismissal is subsequently upheld at the full tribunal hearing, the employer will be ordered either to reinstate or re-engage the employee and/or pay an award of compensation to that employee.