Health and safety

[page 83]

Under sections 44 and 100 of the ERA 96, an employee must not suffer a detriment, be dismissed or made redundant wholly or mainly for:

• carrying out functions as a safety rep;

• raising health and safety concerns with the employer;

• participating in safety consultations with the employer;

• leaving or refusing to return to a place of work in circumstances of “serious and imminent danger”, or taking other appropriate steps to protect themselves or others in these circumstances; or

• carrying out safety duties designated by the employer.

Dismissal for any of these reasons is automatically unfair, and no minimum length of service is required. However, while “workers” now have the right to protection against detriment under section 44 they do not have the right to claim unfair dismissal under section 100, which is still only available to “employees”.

Examples include a finding of unfair dismissal for refusing to drive defective vehicles, and steps to protect members of the public. For example, in Masiak v City Restaurants (UK) Limited [1999] IRLR 780, a chef dismissed for refusing to cook food he considered unfit for human consumption was protected.

“Circumstances of danger” has a wide meaning and includes danger of violence from other employees (Harvest Press Limited v McCaffrey [1999] IRLR 778).

Protection also extends to circumstances of danger on the way to work, such as bad weather, or on public transport (Edwards v Secretary of State for Justice [2014] UKEAT/0123/14/DM).