Over Zealous?
Unfairly Dismissed for ‘Zealous’ Implementation of Health and Safety Policy?
The EAT upheld an employee’s unfair dismissal claim, after he was dismissed for causing “friction” by the manner in which he implemented new health and safety policies. With the prevalence (and possible controversy) of health and safety matters likely to intensify over the coming months as employees return to the office in the wake of the COVID-19 pandemic, the EAT’s decision is a red flag that employers should take notice of.
In Sinclair v Trackwork Ltd, the company tasked an employee, Sinclair, with implementing a new safety procedure. Trackwork did not inform other employees about Sinclair’s authority to do this, and these employees soon raised complaints about Sinclair’s “overcautious and somewhat zealous” approach. Sinclair was subsequently dismissed by Trackwork for the “upset and friction” caused by the manner in which he implemented this safety procedure.
Sinclair brought an employment tribunal claim for automatic unfair dismissal, under Section 100(1)(a) of the Employment Rights Act 1996. This subsection applies where the reason, or, if there are multiple reasons, the principal reason, for the employee’s dismissal is the carrying out of activities related to health and safety, having been designated to carry out such activities by the employer. In such circumstances, the employee’s dismissal is automatically unfair.
The employment tribunal rejected Sinclair’s claim on the basis that it was not Sinclair’s carrying out of those designated health and safety activities which resulted in the workplace friction and subsequent dismissal, but rather the manner in which he sought to implement the new safety procedure. Sinclair appealed to the EAT.
The EAT found that Sinclair had been automatically unfairly dismissed, under Section 100(1)(a). Section 100(1)(a) is intended to provide significant protection to an employee carrying out health and safety activities on his employer’s behalf, and there is nothing in the legislation to suggest that this protection should be lost due to the manner in which these activities are undertaken. Carrying out such activities is often likely to be viewed unfavourably or actively resisted by fellow employees, and the protection afforded by Section 100(1)(a) would therefore be easily undermined if the employer could rely upon upset caused to colleagues to dismiss the employee in question.
The EAT did consider circumstances in which this protection could hypothetically be lost; for example, where the employee’s conduct was wholly unreasonable, malicious, or irrelevant to the given task. However this was not the case for Sinclair, who had diligently carried out his duties, resulting in a perception by his colleagues of his being “over-zealous”.
As employees begin the return to the office, and strict health and safety policies are put in place to prevent COVID outbreaks, there is a risk that those employees designated to carry out health and safety activities may be viewed negatively by their colleagues, creating workplace friction. Any employer considering dismissing these employees should keep the broad protection afforded by Section 100(1)(a) in mind, and be careful in differentiating between diligent, albeit unpopular, employees, and those acting maliciously or unreasonably.
